Mixed Agreements Revisited: The EU and its Member States in the World 9781472565082, 9781841139548

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Acknowledgements The editors are grateful to the Europa Institute in Leiden, the European Commission and its Jean Monnet Programme, the University of Bristol, the Leiden University Fund, and Kluwer Law International for their financial support for the Leiden–Bristol conference (May 2008) at which most papers included in this volume were presented. We should also like to thank the staff of the Europa Institute for its help in the preparation of the above event, and Alan Dashwood, Joni Heliskoski and Allan Rosas for their suggestions in the elaboration of the conference programme. Christophe Hillion Panos Koutrakos

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List of Contributors Henrik Bull, Judge at the EFTA Court, Luxembourg. Marise Cremona, Professor of European law at the European University Institute, Florence. Jeno″ Czuczai, Legal Adviser in the Legal Service of the Council of the European Union, Brussels; Visiting Professor of the College of Europe Brugge and Natolin (Warsaw); Honorary Professor at the Károli Protestant University, Budapest. Alan Dashwood CBE, Professor of European Law at the University of Cambridge, and Fellow of Sidney Sussex College, Cambridge. Inge Govaere, Professor of European law at the University of Ghent and Director of the Legal Studies Department at the College of Europe, Bruges. Joni Heliskoski, Legal Adviser to the Finnish Ministry of Foreign Affairs, Helsinki. Christophe Hillion, Professor of European Law at the University of Leiden and at the University of Stockholm, Researcher at the Swedish Institute of European Policy Studies. Frank Hoffmeister, member of the Legal Service of the European Commission, Brussels and Professor at the Vrije Universiteit, Brussels. Panos Koutrakos, Professor of European Union Law and Jean Monnet Professor of European Law at the University of Bristol. Pieter Jan Kuijper, Professor of the Law of International Organisations at the University of Amsterdam. Marc Maresceau, Professor of European Law, Director European Institute and coordinator of the Jean Monnet Centre of Excellence, University of Ghent. Peter Olson, Legal Adviser Assistant for Europe and Eurasia, Department of State, Washington. Ricardo Passos, member of the Legal Service of the European Parliament, Brussels. xvii

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List of Contributors Allan Rosas, Judge at the European Court of Justice, Luxembourg. Robert Schütze, Senior Lecturer in Law at Durham University. Ivan Smyth, Assistant Legal Adviser at the UK Foreign and Commonwealth Office, London. Ivo van der Steen, Head of the Centre of Expertise on European law of the Ministry of Foreign Affairs of The Netherlands, The Hague. Christiaan Timmermans, Judge at the European Court of Justice, Luxembourg. Ramses A Wessel, Professor of the Law of the European Union and other International Organisations, and Co-Director of the Centre for European Studies at the University of Twente.

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Introduction As it connotes the coexistence between the Member States and the structures of integration which they have set up since the Treaty of Rome entered into force, mixity is one of the defining characteristics of the constitutional life of the European Union. In particular, it defines the ways in which the Union, and, prior to the entry into force of the Lisbon Treaty, the European Community, organise and carry out their relations with third countries and international organisations, and affects the Member States in the conduct of their external relations. As such, mixity has proved to be a source of endless fascination (and no less confusion) for the practitioners, scholars and students of EU law. However, it was a combination of other factors that prompted us to produce this volume. First, this initiative celebrates the silver anniversary of the publication of the seminal book in the area. In 1983, David O’Keeffe and Henry Schermers edited a collection of essays, entitled Mixed Agreements,1 which was destined to become an indispensable guide to mixity for anybody interested in the study and practice of EU external relations. As that book was based on a conference, so is this volume: the Leiden Europa Institute and the University of Bristol organised a conference on mixed agreements in May 2008. The essays set out in this volume are mostly based on papers presented on that occasion. Furthermore, rather than losing its topicality, the phenomenon of mixity is still central to the conduct of the Union’s external relations. The latter area has gradually become more prominent in the EU system: as the number of judgments rendered by the Union’s courts and the academic analyses in the area have increased significantly, so has the study of external relations ceased to be an activity reserved to a few specialists. This development is linked to the increasing blurring of the dividing line between the laws on internal and external affairs: developments governing the international geopolitical environment (the broader understanding of security and the factors which shape it, the globalisation of the economy, the increasing consensus on the interdependence between political, economic and social policies) and EU-specific factors (the completion of the internal market project, the successive enlargements and the ensuing growing confidence of the Union, its search for identity surrounding the process of discussion, negotiation and ratification first of the Treaty Establishing a Constitution for Europe and then the Lisbon Treaty) have placed external relations at the centre of the activities of the European Union. This becomes apparent in the light of the mandate of the 2007 Intergovernmental Conference, which mentions 1

(Deventer, Kluwer, 1983).

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Introduction the Union’s external relations in its very first paragraph,2 and is confirmed by the Lisbon Treaty itself, which reorganises and highlights the international role of the European Union. In this context, the topicality of mixity becomes more pronounced: the limited competence of the European Union (Article 5 TEU), and the Community in the pre-Lisbon days (ex Article 5 EC), the existence of Member States as fully sovereign subjects of international law, the emergence of the European Union as an international actor even pursuant to the pre-Lisbon rules (ex Articles 24 and 38 TEU) and the increasing interdependence of economic activities reflected in international treaty-making, have all increased the significance of the phenomenon of mixed agreements. In light of the above, the time is ripe to reconsider mixity. The aim of this collection of essays is to reassess issues which were examined in the book edited by O’Keeffe and Schermers 25 years ago, to draw on the experience of the intervening years, explore the practice of the negotiation, conclusion, implementation and interpretation of mixed agreements, and to look ahead to the future of mixity. In doing so, this volume endeavours to highlight the multifaceted nature of mixity by bringing together a variety of approaches (theoretical and practical) and voices (academic scholars and practitioners, legal advisers and judges, EU institutions, Member States, third countries). A participant in the original colloquium and publication, Christiaan Timmermans opens the volume by flagging up how the phenomenon of mixity has evolved over the last 25 years, and points to fundamental, and partly recurrent, questions surrounding it. Building on those opening remarks, the first part of the volume sheds a fresh light on the notion and practice of mixed agreements with a view to sketching out a ‘Typology of Mixed Agreements’. Marc Maresceau examines key bilateral agreements that the Community and the Members decided, sometimes unconvincingly, to conclude jointly. Adding to this inventory of ‘classic mixed agreements’, Ramses Wessel looks at the relatively recent phenomenon of ‘cross-pillar mixity’, covering both agreements combining CFSP (Common Foreign and Security Policy, ex Title V TEU) and PJCCM (Police and Judicial Cooperation in Criminal Matters, ex Title VI TEU) legal bases and the hitherto rare agreements mixing Community and Union competences, and draws conclusions for the post-pillar environment established by the Lisbon Treaty. As the initial chapters make clear, mixed agreements constitute usual, and arguably useful, practice of/in EU external relations. They also recall that mixity brings about a host of legal and practical challenges. Part II thus turns to the ‘Constitutional Framework’ within which mixed agreements may be comprehended and managed. Robert Schütze’s chapter offers a reflection on the constitutional significance and relevance of mixity for the specific compound polity that is the European Union. Christophe Hillion then sheds light on the increasing

2

See IGC 2007 Mandate, Council SG/11218/07, POLGEN74, para 1.

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Introduction role that the ‘duty of cooperation’ plays in fostering coherence in the plural EU external action which mixity typifies. Panos Koutrakos envisages the complex—if not confusing—question of jurisdiction of the European Court of the Justice in the context of mixed agreements. Joni Heliskoski decrypts the various ways in which the Community and Member States adopted joint positions when implementing those agreements. Marise Cremona analyses the EU custom of inserting so-called ‘disconnection clauses’ in mixed agreements, designed ‘to protect the autonomy of the Union legal order’. The management of mixity also includes dispute settlement, a topic covered by Inge Govaere, while Pieter-Jan Kuijper addresses the more general and thorny question of international responsibility for EU mixed agreements, as envisaged in the case law of international courts and the International Law Commission. The general framework for managing mixed agreements having thus been exposed, Part III (‘Practice and Actors of Mixed Agreements’) provides an account of how mixity effectively is handled in practice by EU institutions, Member States and EU Treaty partners respectively. Member of the EU Council’s Legal Service, Jeno″ Czuczai points to possible solutions to the usual difficulties arising in the negotiation, conclusion, ratification and implementation of mixed agreements. Frank Hoffmeister critically looks at the recent practice of mixity, taking the Commission’s standpoint, while Ricardo Passos provides the European Parliament’s perspective. Ivo van der Steen and Ivan Smyth, legal advisers to the Dutch MFA and to the UK Foreign Office respectively, glean valuable insight into the often overlooked Member States’ perspective and practice of mixity. Henrik Bull and Peter Olson complete this practitioners’ overview by reminding us of the challenges that mixity presents to EU treaty partners, in casu Norway and the US respectively. In Part IV of the volume, Alan Dashwood wonders about the future of mixed agreements in the era of the Treaty of Lisbon. Observing, in a final chapter, that mixity is in any event there to stay, Allan Rosas calls for further research on the national dimension of mixity, and in particular on the Member State’s role at the levels of ratification and implementation of mixed agreements. All the contributions in this volume were written at a time when the fate of the Lisbon Treaty was uncertain. However, we have taken the changes introduced by it into account, and have sought to adjust the text to the renumbered provisions of the Treaties. In terms of substance, as the new set of rules which governs the Union’s external relations since 1 December 2009 is also based on the co-existence between the Member States and the Union, the insights provided in this collection are all the more relevant. Christophe Hillion Panos Koutrakos

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1 Opening Remarks—Evolution of Mixity since the Leiden 1982 Conference CHRISTIAAN TIMMERMANS

I.

INTRODUCTION

T

HE LEIDEN–BRISTOL CONFERENCE on mixed agreements was organised to take place on 9 May, when Europeans celebrate Schumanday—Saint Schuman. That is why it was possible for me to be here. My fellow countrymen vetoed the Constitution for Europe, according to the Dutch Government at the time, also because of this symbol of Europeanisation. In spite of that, the members and staff of the European Institutions continue to have their day off on 9 May. This allows me to celebrate at the same time the 25th anniversary of the Conference on Mixed Agreements organised at the Leiden Europa Instituut by the late Professor Henry Schermers, whose name remains indissolubly linked with the Leiden Europa Instituut and whom we can only regret not being here today.1 I belong to the happy few here present who participated in that conference. I well remember the elegantly presented, comprehensive and at the same time in-depth analysis of Claus-Dieter Ehlermann, Director-General of the Legal Service of the European Commission as he then was. I also remember vividly the highly controversial discussions on Proba 20, the understanding reached between the Commission and Member States in Council on how to coordinate Community and Member States’ positions during negotiations on international raw material agreements, determining in minute detail the name-plates and places of delegations at the negotiation table. Whilst Proba 20 might have been forgotten, it is still the basis for present practice.2

1 2

D O’Keeffe and H G Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983). C-D Ehlermann, ‘Mixed Agreements A list of Problems’ in O’Keeffe and Schermers, above n 1.

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Christiaan Timmermans In his opening speech Ehlermann presented an inventory of problems caused by mixed agreements based on his experience as a Commission lawyer. It might be interesting to have a look at this inventory, of which the main issues are the following3: —negotiation and conclusion of mixed agreements, participation in the decision-making procedures set up by mixed agreements, including dispute settlement (in other words, how to manage mixity institutionally) —delimitation of competences, list or no list —interpretation and control of compatibility —responsibility. It is interesting that in the programme of the Leiden–Bristol conference, on which this edited collection is based, these issues are equally central. II.

WHAT HAS HAPPENED IN THE MEANTIME?

Does this mean that nothing has changed in the past 25 years? Of course not. But mixity, as an important characteristic feature of EU external relations, has remained. Let me quote from the introduction by David O’Keeffe and Henry Schermers to the book published in 1983 on the material of the 1982 conference: Mixity of International Agreements can no longer be seen as a temporary problem … it will remain with us in the future. … The Member States … want to play their own role and they have won the internal battle for competences. Agreements are made ’mixed’ whenever the smallest ground can be found for that. … The price [for mixity] is uncertainty.4

Much of this still holds true today. Whether this will continue to be true for the foreseeable future, I am less sure. We shall come to that at the end of this chapter. Undoubtedly, looking back over the last 25 years, mixity, the concept of shared competences, has, in practice, prevailed. I would not say the European Commission has lost the battle for exclusivity, but it has lost some important skirmishes on that front: WTO,5 ILO,6 Open Skies Agreements.7 But we should mention at the same time the Opinion on the Lugano Convention8 and some of the cases on legal base issues.9 There has been little exercise of what used to be called 3

Ehlermann, above n 2, at 3ff. O’Keeffe and Schermers, above n 1, at ix and x. 5 Opinion 1/94 WTO [1994] ECR I-5267. 6 Opinion 2/91 ILO [1993] ECR I-1061. 7 Case C-466/98 Commission v United Kingdom [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-9575; 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; and Case C-476/98 Commission v Germany [2002] ECR I-9855. 8 Opinion 1/03 Lugano Convention [2006] ECR I-1145. 9 Eg Case C-281/01 Energy Star [2002] ECR I-12049; Case C-94/03 Commission v Council [2006] ECR I-1. 4

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Opening Remarks ’potential external competences’, in other words the non-exclusive (implicit) external competences. However, here too the picture is more nuanced, as the Court’s interpretation of the Declaration on EC Competences for UNCLOS in the Sellafield case suggests.10 As to what has changed over the past 25 years, I should like to make three points. First, the EC and the EU have seen a remarkable evolution in the field of external relations, an evolution which in 1982 could hardly have been expected. The EU has become a global player, not only in matters of trade policy but much more generally in areas such as the protection of the environment, transport (including air transport), energy and maritime law. The EC has succeeded in becoming a member of an increasing number of international organisations, such as FAO, WTO, the Energy Charter Conference, the Hague Conference on private international law, the Codex Alimentarius Commission and several agreements in the field of fisheries.11 It is a contracting party to important multilateral conventions such as UNCLOS, the Kyoto Protocol, the Montreal Convention and so forth. This remarkable evolution, incredible in the light of the humble origins of the EEC as regards external relations, is an example of an inbuilt paradox of the European integration process: what the Member States often so vehemently opposed and tried to prevent the EC/EU to do, they subsequently, after a couple of years, accept and even wish it to do. We might call this the counterpoint in the dialectics of the integration process. This evolution of external relations has gone hand in hand with an important increase in explicit external competences brought about by subsequent Treaty amendments, starting with the Single European Act of 1986 and continuing with the Treaties of Maastricht, Amsterdam, Nice. and Lisbon But these Treaty amendments were often preceded by external action of the Community in the relevant fields on the basis of implicit external competences, including those deriving from the residual competence clause of ex Article 308 EC (now Article 352 TFEU). In this respect, external action in the field of environmental protection is the best example. Another fine example of this dialectical process is the vicissitudes in the definition of the scope of EC trade policy. Just compare the tortuous drafting of ex Article 133(4) and (5) EC at Amsterdam and Nice with the complete trade policy powers as granted by the Treaty of Lisbon in Article 207 TFEU.

10

Case C-459/03 Commission v Ireland [2006] ECR I-4635. See P Eeckhout, External Relations of the European Union. Legal and Constitutional Foundations (Oxford, Oxford University Press, 2004) 190 ff; C Timmermans, ‘Organising joint participation of EC and Member States’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 239 ff. 11

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Christiaan Timmermans (I note in passing that, over the past 25 years, general international law has started to play an ever-increasing role for the EC and the EU, as the case law of both Union courts amply demonstrates.12) My second point concerns the management of mixity at the level of the institutions. Much time and energy has been spent over the years on interinstitutional haggling about who may represent and speak for whom depending on the centre of gravity of competences, how to delimit this centre of gravity, etc. For the WTO, strenuous efforts have been made by Member States, Council and the Commission to agree on a Code of Conduct about how to manage the exercise of shared competences within the institutions of the WTO.13 These attempts—which, if I recall correctly, were continued during the Intergovernmental Conference negotiating the Treaty of Amsterdam in order to establish some basic institutional rules in that regard at Treaty level—have failed. So did attempts to resuscitate the former Article 116 EEC, a useful legal base for coordination of Member States’ action in the field of external relations, which was deleted by the Treaty of Maastricht. Ultimately, it has been the case law of the Court of Justice which has brought some discipline into the management of mixity. The Court was able to develop some basic principles flowing from the duty of loyal cooperation between Community and Member States under what was Article 10 EC (replaced in substance by Article 4(3) TEU), stressing the requirement of unity in the international representation of the Community. As the FAO judgment suggests,14 in order to ensure that unity of representation, it is essential to ensure close cooperation between Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments into which they enter. That respect for these principles can be judicially sanctioned has been amply demonstrated since then, for instance in the judgments of 2005 on the infringement procedures, Commission v Luxembourg and Commission v Germany with regard to the Danube Convention,15 and most recently in the Sellafield case.16 As an outsider, one has the impression that the institutional management of mixity functions in practice. However, a look at the programme of the Leiden– Bristol conference gives me the impression that I could be wrong: of the six sessions, three are concerned with the management of mixity and mixity in practice. It will be fascinating to hear more about this from the experts in the field, ie the experts from the Member States and the Institutions.

12 See A Rosas, ‘The European Court of Justice and Public International Law’ in J Wouters et al (eds), The Europeanisation of International Law (The Hague, TMC Asser Press, 2008) 71 ff. 13 See Timmermans, above n 11. 14 Case C-25/94 Commission v Council [1996] ECR I-1469. 15 Cases C-266/03 Commission v Luxembourg [2005] ECR I-4805 and C-433/03 Commission v Germany [2005] ECR I-6985. 16 Case C-459/03 Commission v Ireland [2006] ECR I-4635.

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Opening Remarks This brings me to my third point regarding, more specifically, the evolution of the case law with regard to mixed agreements over the past 25 years. There has been, and continues to be, important case law on the direct effect of provisions of international agreements concluded by the EC.17 However, whilst relevant to mixed agreements, this case law is not confined to those. For that reason, I shall not dwell on direct effect; nor on the equally important case law with regard to legal base disputes between the institutions with regard to the conclusion of international agreements. That subject also is not specific to mixed agreements. Member States have, as a rule, been unwilling to allow the EC to exercise non-exclusive external competences, using mixity as an instrument to guard jealously national competences not yet pre-empted by the exercise of Community competence. It is, therefore, only logical that important cases should have come before the Court in order to ask it to draw the line between exclusive and concurrent external competences.18 All that is well-known. However, there is an aspect in the case law of the Court, specifically regarding mixed agreements, which strikes me as particularly interesting. I mean to refer to the case law of the Court concerning its jurisdiction to interpret mixed agreements. In this case law, the Court has been unwilling to restrict that jurisdiction to those parts or provisions of mixed agreements which can be considered as covered by an exclusive Community (now Union) competence. First of all, the Court invokes general jurisdiction for the interpretation of mixed agreements so as to establish the relevant spheres of competence— Community (now Union) competence or national competence. This is not astonishing and is rather self-evident. However, in drawing the line between both spheres of competence, the Court does not apply a strict criterion of exclusivity of Community (now Union) competence—it goes beyond that. The mere potential impact or relevance of a provision of a mixed agreement on existing Union legislation might be sufficient for the Court to accept jurisdiction for the interpretation of that provision. So in Dior, the fact that the TRIPS’ provision on interim relief could also apply to Community trade marks was regarded as sufficient by the Court for it to accept a general jurisdiction for the interpretation of that provision also with regard to situations still coming within national competence.19 In the case brought by the Commission against Ireland for not having adhered to the Berne Convention on copyrights, which was an obligation under the EEA Agreement and which, according to the Commission, fell within the sphere of Community law, the Court accepted the Commission’s argument after having established that the Berne Convention related to an area covered in

17 See Cases C-149/96 Portugal v Council [1999] ECR I-8395, C-377/02 Léon van Parijs [2005] ECR I-1465, C-344/04 IATA [2006] ECR I-403, C-308/06 Intertanko [2008] ECR I-4057. 18 Opinion 1/94 WTO [1994] ECR I-5267; Opinion 2/91 ILO [1993] ECR I-1061; Opinion 2/00 Cartagena Convention [2001] ECR I-9713; Case C-459/03 Commission v Ireland [2006] ECR I-4635. 19 Cases C-300/98 and C-392/98 Dior ao [2000] ECR I-11307; see also Case C-53/96 Hermès [1998] ECR I-3603 and C-245/02 Anheuser Busch [2004] ECR I-10989.

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Christiaan Timmermans large measure by the Treaty and by Community legislation, and moreover fell within the scope of application of the Treaty.20 In the infringement procedure brought by the Commission against France regarding the Convention on Protection of the Mediterranean Sea (Etang de Berre), the Court followed a similar approach.21 The criteria applied in the cases just mentioned so as to delimit, in the context of a mixed agreement, the sphere of Community competence from the sphere of national competence in order to establish the scope of the Court’s jurisdiction, are, in my view, no AETR criteria.22 They are somewhere in between AETR and the mere existence of a concurrent external Community competence. The approach is not so much to establish a risk that accepting national competence and the exercise of such competence might affect existing Community legislation. Rather, the Court is concerned with the question as of whether there is a Community (now Union) interest in accepting jurisdiction for the interpretation of a provision of a mixed agreement in view of the application of the existing Community (now Union) legislation. Therefore, the Court’s jurisdiction with regard to mixed agreements might, in practice, have some spill-over effects, or make inroads into areas which Member States might be inclined to regard as still governed by national competences. But let me add immediately that the recent judgement in Merck on patents illustrates that there are limits to this approach.23 This tendency in the case law not to limit the jurisdiction of the Court strictly to those parts of a mixed agreement which fall within the scope of exclusive Community competence is favoured by the fact that the Council decision concluding a mixed agreement is not always so explicit in limiting the Community participation to such exclusive competence. In any event, it will often be difficult to circumscribe the limits of exclusivity. Even if there is a list of competences, it is normally so loosely drawn up that it leaves large margins for interpretation, as the Sellafield case has shown.24 This rather generous acceptance of jurisdiction by the Court may, of course, have important consequences for the implementation of mixed agreements. Jurisdiction of the Court implies, in principle, that the relevant parts of the mixed agreements form part not only of the Union legal order but also of Union law itself, and that they have to be uniformly interpreted and applied, the Court being ultimately the guardian thereof. Moreover, the enforcement of these rules within the Member States may benefit from the guarantees available under the Union legal order.

20

Case C-13/00 Commission v Ireland [2002] ECR I-2943. Case C-239/03 Commission v France [2004] ECR I-9325. 22 That is the criteria developed in the case law to determine whether the adoption of internal EU legislation has preempted the exercise by Member States of their concurring powers. Case 22/70 Commission v Council [1971] ECR 263. 23 Case C-431/05 Merck Genéricos v Merck & Co Inc, Merck Sharp & Dohme Lda [2007] ECR I-7001. 24 Case C-459/03 Commission v Ireland [2006] ECR I-4635. 21

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Opening Remarks III. CONCLUSION

The conclusion of these somewhat impressionistic remarks about the evolution of the past 25 years is obvious: mixity has indeed remained with us. It has proved to be a fact of life of EU external relations. But even if practising mixity has been a strenuous and time-consuming exercise for those working in the field, it seems not to have caused insurmountable problems. In that regard, Jacques Bourgeois might have been too pessimistic when he argued that ’EC institutions and EC Member States appear to have tightened themselves into a growingly complex Gordian knot’.25 However, each new enlargement of the Union will make the conclusion of mixed agreements more cumbersome—and even entail risks that a Member State might use the necessary approval of a mixed agreement as leverage to obtain concessions in other fields. IV. THE FUTURE

What will the future bring? Will mixity stay with us? Yes, but perhaps not to the extent that we have it today. It might be that, now that the Treaty of Lisbon has entered into force, mixity will be increasingly replaced by cross-pillar mixity. In other words, that mixed agreements will be replaced by agreements concluded by the Union only, without the participation of the Member States, and covering the full range of external competences of the Union, including the Common Foreign and Security Policy (CFSP) and the external dimension of the area of freedom, security and justice.26 There will, of course, have to be a discussion of whether the divergent decision-making procedures can be combined. Combining the Community procedure—to call it that—with the still mainly intergovernmental procedure of CFSP would in some cases entail a substantial increase of power for the European Parliament. On the other hand, it could weaken the supranational element and—which might be more important—the efficiency in decision-making because of the requirement of unanimity in the Council. There exists already a somewhat curious example of a combination of these diverging decision-making procedures in Article 22 of the Treaty on European Union, as amended by the Lisbon Treaty, with regard to the adoption by the Council of a recommendation for a decision on the strategic interests and objectives of the Union to be taken by the European Council. Such a decision will have to be taken by unanimity. This is cross-pillar mixity topped by a mostly intergovernmental decision. President 25 J H J Bourgeois, ‘Mixed Agreements: A New Approach?’ in J H J Bourgeois, J-L Dewost and M-A Gaiffe (eds), La Communauté européenne et les accords mixtes. Quelles perspectives? (Bruxelles, Presses Interuniversitaires Européennes, 1997) 83, at 87. 26 See Ramses Wessel, chapter three in this volume.

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Christiaan Timmermans Charles de Gaulle finally, after 45 years, gets satisfaction: this decision-making procedure closely resembles the institutional set-up of the Fouchet Plan of 1962.27 More generally, it remains to be seen whether Member States will be willing to replace mixed agreements with cross-pillar mixity (’cross-pillar’ is now, of course, an anachronism—we had better call it ’cross-sector mixity’). In legal terms, they will not be required to do so. External competences for CFSP and the external dimension of the area of freedom, security and justice are not exclusive competences, apart from those which arise pursuant to the AETR Principle. If I read the Lisbon Treaty correctly, Member States may continue to prefer to exercise national competences instead of concurring Union competences, as they do nowadays, also by having recourse to mixed agreements. Whatever the future will bring in this regard, personally I very much hope that the third colloquium organised by the Leiden Europa Instituut and the University of Bristol, 25 years from now, will be on cross-sector mixity. I shall try to be there.

27 Cp C Timmermans, ‘The Uneasy Relationship Between The Communities and the Second Union Pillar: Back To The Plan Fouchet?’ (1996) 23 Legal Issues of European Integration 61.

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2 A Typology of Mixed Bilateral Agreements MARC MARESCEAU

I.

INTRODUCTION

T

HE FACT THAT the expression ‘mixed agreements’ was absent from the original EEC Treaty1 did not prevent one of the first bilateral agreements with a third country signed by the Community, the Association Agreement with Greece of 1961, from being mixed. One of the most recent agreements, signed at the moment of preparing this chapter, the Stabilisation and Association Agreement with Serbia, is also a mixed agreement.2 More than 45 years of practice notwithstanding, ‘mixed agreements’, strangely enough, still continue to have something enigmatic about them. One of the reasons is probably the fact that in the preparatory documents for the coming into being and conclusion of agreements, in particular of bilateral agreements, neither the Commission nor the Council or the European Parliament feels any need to explain why an agreement ought to be mixed or not in a particular instance. This lack of information—which cannot be explained by mere inadvertence—does not contribute to a feeling of transparency around the mixed procedure. Moreover, it must be said that the consecutive modifications of the Treaty of Rome have not attempted to define the concept, neither have they clarified its use. Only Article 133, paragraph 6 EC, as modified by the Treaty of Nice, referred to a specific category of agreements in the field of commercial

1 The Euratom Treaty is different from this point view. Where a subject matter of an agreement falls in part within the power and jurisdiction of the Community and in part within that of the Member States then Article 102 EAEC provides that such obligations may be entered into by the Community in association with the Member States; see on this point Ruling 1/78 [1978] ECR 2151, at pt 34. 2 This agreement was signed on 29 April 2008.

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Marc Maresceau policy,3 to be ‘concluded jointly by the Community and the Member States’.4 This was, since the Treaty of Nice, the only explicit reference to mixed agreements to be found in the text of the EC Treaty, but this disappears again with the entry into force of the Treaty of Lisbon.5 In relation to the type of agreements the conclusion of which is subject to the mixed procedure under the Nice Treaty, Article 207(4) TFEU stipulates that the Council shall act unanimously for the negotiation and conclusion of such agreements and, therefore, there is no more mention in the Lisbon version of the conclusion of agreements ‘jointly by the Community and the Member States’. In other words, on this matter unanimity seems to replace mixity, and even if generally speaking unanimity in a Union of 27 or more members is difficult to obtain, this is a step forward in comparison to the pre-Lisbon situation. However, even if, in the text of primary law in the post-Lisbon phase, any explicit reference to mixed agreements disappears, that does not mean that some form of mixed practice would necessarily disappear entirely; however, that is not the subject of the present contribution.6 It is well known how mixed agreements present themselves: they are signed and concluded by the EC and its Member States on the one hand, and by a third party on the other hand. In other words, in one and the same legal instrument, the Community and the Member States express their willingness to be bound towards a third party, and also the third party accepts both the Community and its Member States as contracting parties. Before mixed agreements enter into force, they need to be ratified by all the parties, including of course all the Member States. Mixed agreements, therefore, create a kind of additional reinforced unanimity. However, with the consecutive EU enlargements, this makes the mixed procedure also more and more unworkable in practice. Nonratification by one Member State is sufficient to block the entry into force of the agreement, and this seriously affects the Community as a whole, as well as the Member States that have already ratified it. Notwithstanding this evident handicap which the mixed procedure necessarily entails, it also has a positive side: instead of first trying to solve endless internal competence questions among EU

3 This category covers agreements relating to trade in cultural and audiovisual services and social and human health services. 4 Emphasis added. On this provision, see M Dony, ‘Les accords mixtes’ in J-V Louis and M Dony (eds), Relations extérieures. Commentaire J Mégret. Le droit de la CE et de l’Union européenne (Brussels, Editions de l’Université de Bruxelles, 2005) 169 and 175; also E Neframi, Les accords mixtes de la Communauté européenne: aspects communautaires et internationaux (Brussels, Bruylant, 2007) 187–90. 5 The fact that, in practice, a high proportion of agreements is mixed is a matter which is not considered in the Treaty of Lisbon; see M Cremona, ‘Defining competence in EU external relations: lessons from the Treaty reform process’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations. Salient Features of a Moving Landscape (Cambridge, Cambridge University Press, 2008) 62–63. 6 For more details on the impact of the Treaty of Lisbon on mixed agreements, see chapter 18 in this volume by Alan Dashwood.

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A Typology of Mixed Bilateral Agreements institutions or among EU institutions and Member States, and even among Member States themselves, it has allowed the Community to go ahead with the agreement. Seen from this perspective, the mixed formula may facilitate the coming into being of an agreement but it is its formal conclusion that will need time. In practice, two techniques have been developed gradually in order to alleviate this negative effect of mixity, both of which are particularly relevant for mixed bilateral agreements. A commonly used practice is to sign and conclude formally a separate agreement incorporating those parts of the main agreement that are within Community competence. Such agreements are usually called ‘interim agreements on trade and trade-related matters’, and they have the great advantage that they can swiftly enter in force since they do not have to be ratified by the Member States; moreover, the Community’s procedure for the conclusion of trade agreements is a simple and quick one.7 Another procedure, basically leading to the same result but used less frequently for mixed bilateral agreements, is to decide to apply provisionally certain portions of the agreement. The provisions of a mixed agreement subject to provisional application usually take the form of an exchange of letters and are attached to the Council Decision concerning provisional application.8 It should be noted that the procedure of provisional application has been followed not only in order to accelerate the entry into force of parts of some mixed agreements; provisional application is a pragmatic solution in the EC’s external practice and something which is, for example, also used frequently in the area of (non-mixed) bilateral fisheries agreements, specifically to avoid any interruption of fishing activities by Community vessels in the waters of the partner country, often resulting from late initialling of new agreements or protocols.9 This chapter concentrates on ‘classical’ mixed bilateral agreements – that is agreements concluded by the Community and its Member States with a third State – and does not touch upon ‘cross-pillar mixity’, which is the subject of a specific contribution by Ramses Wessel in chapter three of this volume. Focusing

7 Eg, see the many interim agreements on trade and trade-related matters concluded in the context of the signature of the Europe Agreements with the countries of Central and Eastern Europe and the Partnership and Cooperation Agreements with countries of the former USSR, the countries of the Western Balkans mentioned further below. 8 See, eg, Council Decision of 29 July 1999 on the provisional application of the Agreement on Trade, Development and Cooperation with South Africa [1999] OJ L/311/1; for another example, see Council Decision of 22 December 2003 on the conclusion of an Agreement in the form of an Exchange of Letters concerning the provisional application of the trade and trade-related matters of the Euro-Med Agreement with Egypt [2003] OJ L/345/113. 9 Since 1995, more than 50 such agreements have been concluded. For a few recent examples, see Council Decision of 12 February 2008 concerning the conclusion of an agreement on the provisional application of the Fisheries Partnership Agreement with the Republic of Côte d’Ivoire [2008] OJ L/48/37; see also Council Decision of 12 February 2008 on a similar agreement with the Republic of Seychelles [2008] OJ L/48/31.

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Marc Maresceau on mixed bilateral agreements does not mean that the practice of mixed multilateral agreements can be ignored. The issue of the position of the Community in multilateral structures is a difficult one, and has given rise to specific questions when envisaging adherence to a multilateral agreement or setting up a new multilateral framework. Mixed agreements in a multilateral context have been extensively examined by the European Court of Justice, often, but not exclusively, through opinions under Article 300(6) EC (new Article 218(11) TFEU) which, in turn, have attracted a lot of attention in legal literature. Furthermore, various contributions in this volume deal with the question of mixity in a multilateral context.10 ‘Mixity’ in bilateral agreements has been much less the focus of judicial and academic analysis. This modest contribution, which is far from an exhaustive examination of the subject, attempts therefore to provide some clarity regarding the use of the mixed procedure in relation to bilateral agreements.

II.

WHY BILATERAL MIXITY?

Why would the Community and its Member States together sign and conclude a bilateral agreement with another party? Is this not making life unnecessarily more complicated than it already is? Why do the Community and the Member States not sign and conclude, each for their own sphere of competence, separate agreements with the third party? It is not easy to give a quick answer to these, at first sight, simple questions. The Community’s competences in general are based on the principle of conferred powers (Article 5 EC, new Article 5 TEU). This principle applies also for the foundation of external competences.11 In order to understand whether and to what extent the Community is competent to act externally in a particular substantive area, one has first to examine the EC treaty-making capacity as this is organised in primary law. The issue of mixed agreements comes up when parts of an envisaged agreement do not fall within the Community’s competence while other parts do.12 An important question in this respect is whether non-exclusive Community competence with regard to certain provisions of an agreement, always implies that the mixed procedure has to be followed when it comes to concluding the agreement. Certain competences can be shared and allow the Community to act separately or jointly with the Member States when agreements with third parties are concerned. 10

Eg chapters by Heliskoski, Cremona, Govaere and Kuijper in Part II of this volume. For a confirmation of this principle, with regard to external competences, see Opinion 2/00, Cartagena Protocol [2001] ECR I-9713. 12 See C Timmermans, ‘Organising Joint Participation of EC and Member States’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 241; P Eeckhout, External Relations of the European Union. Legal and Constitutional Foundations (Oxford, Oxford University Press, 2004) 190–91. 11

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A Typology of Mixed Bilateral Agreements An important momentum in the conclusion of an agreement is the choice of the proper legal basis, and in this respect the examination of the objectives and contents of the agreement is crucial, as was made clear by the Court of Justice in Portugal v Council.13 In this well-known case concerning the conclusion of the bilateral 1992 Cooperation Agreement on Partnership and Development with India14 on the basis of the EC Treaty provisions on development cooperation, the Portuguese Government argued that recourse had to be had to Article 235 EC (new Article 352 TFEU, ex Article 308 EC) and ‘to participation of all the Member States in the conclusion of the Agreement’, since the agreement, along with development cooperation, included, among others, specific matters coming within the sphere of Member State competence such as intellectual property, drug abuse control, tourism and culture. The Court, however, rejected this approach and applied the ‘absorption doctrine’. It held that regard had to be had to what was the essential object of the agreement and to what were only ancillary aspects. A development cooperation agreement could well contain clauses concerning various specific matters without altering the main objective of the agreement. A mere inclusion of provisions for cooperation in specific fields did not necessarily imply a general power such as to lay down the basis of a competence to undertake any kind of cooperation in that field, and could 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 a field’.15 The Court examined in detail the objectives and contents of each of the specific provisions challenged by the Portuguese Government, and concluded that the provisions in question did not constitute objectives distinct from those of development cooperation. For example, matters as drug abuse control could not be excluded from the measures necessary for the pursuit of development cooperation objectives. In fact, production of narcotics, drug abuse and related activities could also constitute serious impediments to social and economic development, one of the main objectives of development cooperation. However, exchange of relevant information, including that relating to money laundering, as provided for in Article 19 of the agreement, needed a restrictive interpretation. It was indeed only in so far that exchange of information made a contribution that was intimately linked to the measures provided for in the agreement that it could be included amongst the actions falling within the field of development cooperation. In other words, there was no need for the Member States also to conclude the agreement with India. The essential object of the above agreement could be identified rather easily and, clearly, the broad dimension of ‘development’ was the dominant feature of the agreement in question. However, bilateral agreements often pursue different 13 14 15

Case C-268/94 [1996] ECR I-6177. For text, see [1994] OJ L/223/24. See n 13 above, judgment at para 46.

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Marc Maresceau objectives at the same time, and in practice it might be difficult—or even impossible—to identify one leading objective. An example of such a ‘multiheaded agreement’ is the 1997 Agreement with Mexico16 which was concluded through the mixed procedure. This agreement is further addressed briefly in this chapter. No doubt, the Court’s ruling in Portugal v Council has contributed substantially to clarifying the impact of the relationship between ‘ancillary’ and ‘essential objective(s)’ of an agreement. But, this ruling notwithstanding, if there is political consensus among the Member States that an agreement ought to be mixed, they will almost certainly manage to impose the mixed procedure, particularly by adding provisions which stand on their own and need Member State involvement. In order to dissipate doubts about the need for mixity, it was and is often easy to make an agreement mixed by simply adding a provision on ‘political dialogue’, a typical domaine réservé for Member States. It seems that adding ‘political dialogue’ sets aside the Court’s message about ‘ancillary’ and ‘essential objectives’. Even if in practice political dialogue does not always mean very much in concrete terms, and could often be qualified as (very) ‘ancillary’ to the core substance of the agreement, it will make the agreement mixed. A few examples of this are provided further in this chapter. But where expediency is needed, mixity can also be avoided through the orientation of the negotiations and conclusion of an agreement in the direction of what are Community competences; moreover, as will also be shown, a broad interpretation of these competences on the basis of the Community’s implied powers will help to avoid mixity. It is then also clear that one of the major difficulties with mixed agreements is that of approaching them from a purely legal perspective. Mixed agreements are almost always—if not always—to be found in this fascinating but at the same time complex grey zone where law and politics meet, and we should never forget this when dealing with them. III.

DIFFERENT CATEGORIES OF MIXED BILATERAL AGREEMENTS

In the world of bilateral agreements, it does appear that certain types of agreement are more likely to fall within the mixed category than others. It is therefore useful to make an inventory of the various types of bilateral agreements that have been concluded under the mixed procedure. However, from the outset, a word of caution is necessary with regard to presenting a typology exclusively based on existing practice of mixed agreements. Mixed agreements are an evolving phenomenon. What is mixed competence today may be exclusive Community competence tomorrow. Moreover, as was already mentioned, it might be possible to orient bilateral negotiations towards avoiding mixity by simply not incorporating provisions that could give rise to participation of the 16

For text, see [2000] OJ L/276/444.

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A Typology of Mixed Bilateral Agreements Member States in the conclusion of the agreement. In other words, in a study on mixity, it might well be useful to consider why certain bilateral agreements are non-mixed. The following categories of bilateral agreements are briefly addressed here: association agreements, cooperation agreements of a general nature, sectoral cooperation agreements with political dialogue and, lastly, sectoral cooperation agreements without political dialogue. Certainly what follows is not the last word in analytical creativity, and no doubt Magritte would have said ‘ceci n’est pas une typologie’. Eeckhout is more than right when, in the context of mixed agreements, he observes that it is ‘preferable to look at the practice on its own merits and not to base oneself on a pre-conceived typology’.17 It simply appears that all of the mixed bilateral agreements mentioned in this chapter seem to belong to one of these four categories in one way or another.

A. Association agreements The biggest group of mixed bilateral agreements is that of the association agreements. These are the oldest category of mixed agreements and, almost naturally, association agreements are seen as mixed agreements. At first sight, however, it may appear paradoxical that association agreements needed the presence of Member States as contracting parties. Already under the old EEC Treaty, association agreements, together with trade agreements, were explicitly foreseen—and they were the only ones—as categories of agreements that could be concluded by the Community itself. Moreover, the constitutive characteristics of the concept ‘association agreement’, enumerated in the then Article 238 EEC (new Article 217 TFEU) and which have been maintained throughout the various amendments of the EEC and EC Treaty, were and remain vague, thus allowing a wide discretion as to what could fall under ‘association’. If Member States wanted to have a final say on association agreements, there was no problem, since unanimity for their conclusion was needed in any case and, consequently, seen from this perspective, mixity did not seem to be essential. Nevertheless, as has already been mentioned, the first bilateral association agreements, those with Greece and Turkey, were mixed. The political importance and the genuine pre-accession nature of these agreements may have been a strong incentive in favour of mixity for the Member States. Be that as it may, this early 17 Above n 12 at 191. There are few attempts in legal writing presenting a typology of mixed bilateral agreements. One of the oldest is probably that by H G Schermers, ‘A Typology of Mixed Agreements’ in D O’Keeffe and H G Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 23–33, but it is not very relevant for a study on mixed bilateral agreements. The PhD on mixed agreements by Neframi, mentioned above n 4, has a short section on ‘la classification des accords mixtes’ (at 16–19), but this is far from an attempt to present a typology of mixed agreements and no special attention is paid to mixed bilateral agreements.

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Marc Maresceau practice gave birth to the establishment of the mixed bilateral procedure and set the trend for later bilateral association agreements, whether they were predecessors of accession treaties or not. It is useful to recall in this context the ‘rebirth’ of association, after a long period of disuse, through the conclusion in the 1990s of the important series of association agreements with the countries of Central and Eastern Europe, called ‘Europe Agreements’.18 Ten such agreements were concluded and they have now all been replaced by accession treaties. Stabilisation and Association Agreements (SAAs), which are gradually being concluded with the countries of the Western Balkans, also belong to the mixed category.19 Besides their mixity, these two categories of association agreements have various features in common, the most important of which is that all the associated partners under these agreements aspired or aspire to become members of the EU. If it is true that association agreements with a pre-accession dimension have always been mixed, that of course should not mean that all bilateral association agreements have always been pre-accession agreements. As a matter of fact, even the first Europe Agreements with Hungary, Poland and the Czech and Slovak Federal Republic, signed in 1991, were rather an alternative to pre-accession than genuine pre-accession agreements. It was only later, through political reorientation of the EU’s vision on the relations with the countries of Central and Eastern Europe, which started with the 1993 Copenhagen European Council, that these association agreements became important pre-accession tools.20 The SAAs, for their part, at least conceptually, are more clearly pre-accession agreements than the Europe Agreements, and they refer in their preamble to the associated countries as ‘potential candidates’ for EU accession. Europe Agreements (and SAAs) contain a provision on ‘political dialogue’, and that in itself has, until now, as already mentioned, been sufficient to make these agreements mixed. But other motives may also have played a role in opting for the mixed procedure. Almost certainly, the Member States wanted to be ‘visible’

18 For an example, see Europe Agreement with Hungary [1993] OJ L/347/1. On these agreements, see K Inglis, ‘The Europe Agreements Compared in the Light of Their Pre-accession Orientation’ (2000) 37 CMLRev 1173–1210; F Hoffmeister, ‘General Principles of the Europe Agreements and the Association Agreements with Cyprus, Malta and Turkey’ in A Ott and K Inglis (eds), Handbook on European Enlargement (The Hague, Asser Press, 2002) 349–66. 19 On these agreements, see J Marko and J Wilhelm, ‘Stabilisation and Association Agreements’ in Ott and Inglis, above n 18, 165–74; also D Phinnemore, ‘Stabilisation and Association Agreements: Europe Agreements for the Western Balkans?’ (2003) 8 European Foreign Affairs Review 77–103. At the moment of writing SAAs are in force with Croatia ([2005] OJ L/26/1) and the Former Yugoslav Republic of Macedonia ([2004] OJ L/84/1). SAAs have been signed with Albania [2009] OJ L/107/165, Bosnia Herzegovina (16 June 2008), Serbia (29 April 2008) and Montenegro (15 October 2007), but they have not yet been ratified. For the time being, a SAA with Kosovo seems unlikely since mixity implies signature of all Member States, something difficult to obtain as long as some of them have not recognised the independence of Kosovo. 20 On this aspect, see P-C Müller-Graff, ‘East Central Europe and the European Union: From Europe Agreements to a Member State Status’ in P-C Müller-Graff (ed), East Central Europe and the European Union: From Europe Agreements to Member State Status (Baden-Baden, Nomos, 1997) 16.

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A Typology of Mixed Bilateral Agreements in these new agreements, and they did not want ‘to disappear’ behind the back of the European Community at the signing and conclusion of such important agreements. This ‘physical’ presence was for them an evident demonstration of their firm support for the political and economic reforms which the associated countries had accepted to undertake after the fall of communism. A brief remark on the association agreements with Malta21 and Cyprus,22 signed respectively in 1970 and 1972, is worth making. Clearly, these agreements were not pre-accession agreements, and were also not mixed since they covered the gradual establishment of a customs union and nothing else. They are the only non-mixed bilateral association agreements the Community has ever concluded. Later, these agreements were not transformed into mixed association agreements, when these countries considered applying for EU membership and then actually did apply. Even if these association agreements lacked any reference to accession, this has not prevented the Commission from issuing positive Opinions on both countries’ applications for EU membership. When Malta and Cyprus became EU members on 1 May 2004, the Accession Treaty simply replaced the existing commercial association agreements. Other bilateral association agreements that are totally disconnected from the enlargement question are the Euro-Med Agreements with the countries of the Southern Mediterranean.23 The agreements in this category contain references to political dialogue and are mixed.24 However, a special case is the EuroMediterranean Interim Association Agreement on Trade and Cooperation between the EC and the PLO for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip.25 This agreement, which refers to ‘association’, is not mixed and is based on Article 113 EC (ex Article 133 EC, new Article 207 TFEU) and on EC Treaty provisions on development cooperation. It was supposed to be replaced rapidly by a genuine mixed Euro-Med Association Agreement,26 but this replacement has not taken place. Legally speaking, it was certainly not obvious to use the term ‘association’ for this agreement, since for its conclusion the then Article 238 EC for association agreements was not used.27

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[1971] OJ L/61/1. [1973] OJ L/133/1. 23 Euro-Med Agreements have been concluded with the following countries: Tunisia [1998] OJ L/97/1; Israel [2000] OJ L/147/7; Morocco [2000] OJ L/70/1; Jordan [2002] OJ L/129/1; Egypt [2004] OJ L/304/1; Algeria [2005] OJ L/265/7; Lebanon [2006] OJ L/143/1. The agreement with Syria was initialled in 2004 but has not been concluded yet. 24 On these agreements, see J Raux, ‘La mise en perspective des accords d’association euroméditerranéens’ in M Dumoulin and G Duchenne (eds), L’Europe et la Méditerranée. Actes de la VIe Chaire Glaverbel d’études européennes (Brussels, Peter Lang, 2001) 173–89. 25 [1997] OJ L/187/1. 26 See E Lannon, ‘L’accord d’association intérimaire: Communauté européenne—OLP: l’institutionnalisation progressive des relations euro-palestiniennes’ (1997) Revue des affaires européennes 177. 27 On this point, see C Flaesch-Mougin, ‘Differentiation and Association within the Pan-EuroMediterranean Area’ in M Maresceau and E Lannon (eds), The EU’s Enlargement and Mediterranean Strategies. A Comparative Analysis (Houndsmills, Palgrave, 2001) 80–81. 22

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Marc Maresceau Another political and legal difficulty relating to the agreement with the PLO was the strong need for a reference to political dialogue, since its inclusion would automatically have implied mixity and, consequently, long delays for its entry into force, while, for political reasons, it was thought that this agreement ought to enter into force rapidly after the conclusion and the entry into force of the Euro-Med Agreement with Israel. This explains why, simultaneously with the signature of the Interim Agreement, but separately nevertheless, a EU–PLO Joint Declaration on political dialogue was issued. Clearly, regarding association and mixity even in the EC’s very complex Middle East relations, the saying ‘where there’s a will there’s a way’ was also applicable. A number of association agreements have been concluded or are envisaged with countries or groups of countries which do not belong to the EU neighbourhood. The association agreement with Chile28 occupies a very prominent place in this group since it is the only bilateral association agreement with a third country outside the EU’s proximity, and it symbolises the EU’s political and economic interest in Latin America.29 A mixed inter-regional framework cooperation agreement with Mercosur and its Member States has been concluded,30 which is due to be replaced by an ambitious inter-regional association agreement. The agreement with Chile cannot be dissociated from this multilateral agreement with Mercosur and its Member States, but completion of negotiations of this latter agreement is proving more difficult than originally expected. While negotiations on political dialogue and cooperation are virtually concluded, the trade chapter remains a serious stumbling block. One of the main issues in this respect is trade in agricultural products. This explains why for the moment the grand mixed inter-regional association is still missing.31

B.

Cooperation agreements of a general nature without association

A number of important mixed cooperation agreements of a general nature, without establishing an association, have been concluded. The various agreements with the ex-USSR countries are part of a network of partnership and cooperation agreements, and constitute the most prominent group in this category, but a few other individual cooperation agreements of a general nature should also be mentioned. 28

For text, see [2002] OJ L/352/1; for the conclusion of the agreement, [2005] OJ L/84/19. See J Lebullenger, ‘Politiques extérieures: actions extérieures de l’Union européenne’ (2003) Annuaire de droit européen 458. 30 For text, see [1999] OJ L/112/66. 31 In December 2007 the parties reaffirmed their will to re-launch negotiations with a view to concluding an association agreement (see Montevideo Mercosur–EU Joint Communiqué of 17 December 2007); see also the Lima Mercosur–EU Troika Summit Joint Declaration of 17 May 2008, Council, Press Communiqué, 9541/1/08 REV 1 (Press 132). 29

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A Typology of Mixed Bilateral Agreements 1.

Partnership and Cooperation Agreements

Partnership and Cooperation Agreements (PCAs) have been concluded with the countries of the ex-USSR. Within this category a subdivision can be made between the PCAs with Russia,32 Ukraine,33 Moldova34 and Belarus (with the last, negotiations were completed in 1995 but the Agreement never came into force), on the one hand, and the PCAs with the countries of the Southern Caucasus35 and Central Asia,36 on the other hand. In general, the concrete substantive scope of the provisions of the PCAs is limited, and that of the second category of PCAs is even more meagre than that of the first category. However, all PCAs, including those of the second category, contain references to political dialogue, and this again, at least from a legal point of view, is already sufficient to make them qualify for the status of mixed agreements, although other provisions relating to possible cooperation in matters falling under CFSP and JHA, for example, also explain this. The incorporation of these areas in PCAs has led to the introduction in legal writing of what some have suggested is a new form of mixity, as opposed to ‘classical mixity’. ‘New mixity’, it is argued, finds its origins in the fact that, on the one hand, the EU lacks express legal personality, while, on the other hand, the scope of PCAs clearly goes beyond that of the first pillar. In other words, ‘cross-pillar mixity’ is achieved, and this explains why there is an extra need for the Member States’ involvement in the conclusion of the PCAs.37 However interesting this explanation may be, though, it adds nothing new to the use of the mixed procedure as such. Partnership and Cooperation Agreements also include political dialogue and, as mentioned above, this is already enough to make them mixed. The fact that areas falling under second and third pillar activity are covered only reinforced the need for Member States’ involvement and thus for mixity, unless of course the EU would also have been a contracting party alongside the EC, but this was difficult to imagine under the rules created by the Treaty of Maastricht.38 The option for the ‘classical’ mixed procedure for the PCAs appeared the most adequate and, seen from a purely legal point of view, there is no problem with that.

32

[1997] OJ L/327/1. [1998] OJ L/49/1. Negotiations for a new agreement with Ukraine were launched in March 2007 and are continuing at the moment of writing. It is expected that the PCA will be replaced by an association agreement. 34 [1998] OJ L/181/1. 35 Armenia [1999] OJ L/239/1; Azerbaijan [1999] OJ L/246/1; Georgia [1999] OJ L/205/1. 36 Kazakhstan [1999] OJ L/196/1; Kyrgyzstan [1999] OJ L/196/46; Uzbekistan [1999] OJ L/229/1. 37 For a more detailed analysis of this approach, see C Hillion, The evolving system of European Union external relations as evidenced in the EU Partnership with Russia and Ukraine (PhD thesis, Leiden, 2005) 61 ff. 38 See chapter three by Ramses Wessel in this volume. 33

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Marc Maresceau 2. Other cooperation agreements of a general nature Three mixed bilateral agreements outside the PCA network seem to qualify for this type of agreement. The agreements with South Africa, Mexico and San Marino are all mixed cooperation agreements with a more or less general component, but they are also very different from one another. The 1999 Trade, Development and Cooperation Agreement with South Africa is an obvious example of an agreement which, from the point of view of substance, can hardly be considered to have needed the mixed procedure.39 The agreement contains provisions on trade with a prospect of free trade, development cooperation, economic cooperation and other sectoral cooperation, including transport, energy, tourism, agriculture, services, etc. Such content may rapidly lead to reflections on what are the leading and ancillary objectives of the agreement. With regard to the agreement with South Africa, the Commission had initially proposed that it be signed only by the Community, but a majority of Member States insisted on the mixed procedure.40 A provision on political dialogue became Article 4 of the agreement. Also, the political specificity of the partner and the symbolic character of the agreement after the apartheid era probably influenced the choice in favour of mixity. In addition, the choice of the legal basis for the conclusion of the agreement—the association provision, Article 310 EC (new Article 217 TFEU)—was not particularly self-evident. But it is also widely known that the unilateral choice by the Community of the use of Article 310 (new Article 217 TFEU), as a legal basis for the conclusion of an agreement, is not sufficient to transform an agreement into an association agreement; the other party must at least agree on this specific qualification of the agreement. Since this has not been subject of the negotiations, the use of Article 310 (new Article 217 TFEU) as a legal basis for the conclusion of the agreement is principally to be explained by reasons of pragmatism. The use of Article 310 (new Article 217 TFEU) avoids the complex search of the proper substantive legal sources.41 The 1997 Economic Partnership, Political Coordination and Cooperation Agreement with Mexico42 follows to a large extent the pattern of the Association Agreement with Chile,43 but without being an association agreement based on Article 310 EC (new Article 217 TFEU). It contains references to free trade and refers to many different areas of cooperation. As its formal title indicates,

39 40

For text, see [1999] OJ L/311/3. See A Rosas, ‘The European Union and Mixed Agreements’ in Dashwood and Hillion, above n

12. 41 Also, the envisaged Council Decision on the signing of the new agreement with South Africa updating the 1999 Agreement and adding new provisions on such matters as Terrorism, the International Criminal Court, Weapons of Mass Destruction, Mercenaries and Small Arms will be mixed and based on Article 310 EC, see COM (2008) 50 Final. 42 [2000] OJ L/276/44. 43 See Lebullenger, above n 29 at 459.

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A Typology of Mixed Bilateral Agreements however, it is difficult to find the proper qualification for this agreement. Development cooperation, for example, is one of its objectives,44 but not, as opposed to the 1992 Cooperation Agreement with India, the leading objective, and it is not explicitly mentioned in the title of the agreement. The agreement with Mexico pursues various objectives having more or less the same weight. It also institutionalises intensified political dialogue covering all bilateral and multilateral matters of mutual interest and favouring closer consultation between the parties in the context of international organisation. The political dialogue is conducted in accordance with an elaborated Joint Declaration on Political Dialogue annexed to the agreement, ‘which shall form an integral part of the Agreement’ (Article 3). The reference to ‘political coordination’ in the title of the agreement sufficiently illustrates the importance of the place of political dialogue and then naturally, also, of mixity. The 1991 Agreement on Cooperation and Customs Union with San Marino45 is probably the most striking example in the category of mixed cooperation agreements. This agreement, as its title indicates, sets up a customs union, but it also contains provisions on possible cooperation in various areas including industry, environment, tourism, communication, information and culture, domains which may be extended by mutual agreement. A specific section is devoted to social provisions, including cooperation in the field of social policy, such as the non-discrimination principle for workers and provisions on social security. There is no reference to political dialogue in the agreement, and it is only the inclusion of the social provisions that might explain why the mixed procedure was followed. However, the use of this procedure would also lead to an exceptionally and surrealistically long process for approval by all the Member States, complicated by the fact that, in the course of this process, the EU had enlarged further, making additional ratifications necessary.46 In the end, the ratification procedure would take no fewer than 11 years, which is the longest ever for a mixed agreement. In the end, the agreement entered into force only in 2002.47 Fortunately, the main objective of the agreement—the establishment of a customs union—had been implemented on the basis of the Interim Agreement on trade and trade-related matters, which had been concluded soon after the signature of the main agreement.48

44 As a matter of fact the ‘development cooperation’ dimension is almost hidden in the mass of provisions of the agreement, being found under the heading ‘Cooperation in social affairs and poverty’, where Article 36 refers to ‘vulnerable groups and regions such as the indigenous population, the rural poor, women on low income and other population groups living in poverty’. 45 [2002] OJ L/114/132. 46 See M Maresceau, ‘The relations between the EU and Andorra, San Marino and Monaco’ in Dashwood and Maresceau, above n 5, at 288–89. 47 For text, see [2000] OJ L/276/44. 48 [1992] OJ L/359/13.

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Marc Maresceau C. Mixed trade and cooperation agreement with political dialogue The 1996 Framework Agreement for Trade and Cooperation with the Republic of Korea49 is probably the only mixed ‘trade and cooperation agreement’ to be mentioned. Usually for such agreements the Community procedure suffices, and before the entry into force of the Maastricht Treaty these agreements were based on Articles 113 and 235 EC (new Articles 207 and 352 TFEU, ex Articles 133 and 308 EC), guaranteeing the say of the Member States through Article 235 EC (new Article 352 TFEU, ex Article 308 EC), which required unanimity. After the entry into force of the Maastricht Treaty, the new specific substantive provisions were used increasingly instead of Article 235 EC (new Article 352 TFEU, ex Article 308 EC). When negotiations for the agreement with Korea were initiated, the possible mixed character of the envisaged agreement was uncertain, and the Council, when adopting the negotiation directives, reserved the right to decide on the matter of mixity once the negotiations were completed.50 In the end, pressure by some Member States was strong enough to ensure the mixed procedure and, consequently, this agreement also became a mixed one, essentially by adding political dialogue as a provision of the agreement (Article 3), and notwithstanding the fact that, rather exceptionally, Article 308 EC was one of the legal bases for the decision on the conclusion of the agreement,51 which already required unanimity among the Member States.

D. Mixed sectoral agreements without political dialogue In 1999, the so-called Bilaterals I were signed with Switzerland, and this included seven sectoral agreements.52 These agreements, although distinct from one another, were interconnected through the so-called ‘termination clause’ (‘clause guillotine’) which provides that all the agreements enter into force simultaneously and that they all come to an end should any one of them be terminated.53 The smooth conclusion of this set of agreements was complicated by the fact that one of them, that on free movement of persons, was a mixed agreement, needing ratification by all the Member States before the whole set of agreements could enter into force. The Belgian Government was not particularly eager to go for

49

[2001] OJ L/90/46. COM(96)141/6. 51 [2001] OJ L/90/45. 52 For text of these agreements, see [2002] OJ L/114/1. The agreements cover transport over land, civil aviation, free movement of persons, public procurement markets, elimination of technical barriers to trade, research and agriculture. 53 See eg Art 24(4), Agreement on Free Movement of Persons [2002] OJ L/114/11. 50

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A Typology of Mixed Bilateral Agreements rapid ratification because of the handling of the SABENA debacle by Swiss Air, but in the end, Belgium ratified the Bilaterals I in 2002 and they entered into force. The Agreement on Free Movement of Persons in Bilaterals I is also one of the sensitive agreements in the context of EU enlargement. Existing mixed bilateral agreements need extension protocols when EU enlargement takes place. The reason for this is easy to understand: the third country has concluded an agreement not only with the Community, but also with its Member States. If the group of Member States changes and increases, the third country needs ‘to acknowledge’ this new reality, and has also to accept the conditions resulting from the accession of these new Member States. We return below to the effects of EU enlargement on existing mixed bilateral agreements. For the Free Movement of Persons Agreement, Switzerland, through a referendum, accepted such an extension to the new Member States of the 2004 enlargement, and this resulted in the conclusion of an extension protocol.54 A similar protocol was necessary for the EU accession of Bulgaria and Romania,55 and a referendum on the (gradual) extension of free movement of persons to these two new EU Member States was organised in February 2009. The positive outcome of this referendum has avoided difficulties in the bilateral relations between the EU and Switzerland since a rejection of the protocol could have led to the application of the ‘termination clause’ with regard to Bilaterals I. Another mixed bilateral agreement with Switzerland is that on combating fraud and any other illegal activity to the detriment of the financial interests of the parties.56 This agreement basically deals with combating smuggling and other offences in the area of indirect taxation. Direct taxation is explicitly excluded from the scope of the agreement. A mixed bilateral agreement on combating fraud is currently also being negotiated with Liechtenstein. One of the difficult questions here was whether and to what extent cooperation regarding direct taxation could be included. However, at the moment of writing the agreement has not yet been signed as a result of opposition by Austria and Luxembourg who fear that their banks would be adversely affected by the envisaged agreement. Some other examples of mixed sectoral cooperation agreements need to be mentioned. One category concerns agreements organising participation in the Galileo System (Civil Global Navigation Satellite System, GNSS). Such agreements have, for example, been concluded with Korea57 and signed with some other countries, including Ukraine, Israel and Morocco.58 The agreement with Korea is based on Articles 133 and 170 EC (new Articles 207 and 186 TFEU),

54 55 56 57 58

[2006] OJ L/86/28. See COM (2008) 209 final. For text, see COM (2004) 559. The agreement is not yet ratified. For text, see [2006] OJ L/288/31. Agreements not yet published in Official Journal.

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Marc Maresceau which explicitly provide for the possibility for the Community to conclude agreements with third countries in the field of technological development. It is obvious that in an area such as GNSS, the EC is competent, for example, in relation to trade and market development, standardisation and certification (Articles 9 and 10), but it is also evident that the scope of the agreement goes beyond the EC’s exclusive competence, and an important aspect of GNSS is security related.59 Another mixed sectoral agreement is the Agreement on Maritime Transport with China.60 This agreement is based on Article 80(2) EC (new Article 100(2) TFEU). The scope of the cooperation—including, among other things, shipping safety and efforts to combat piracy and terrorism—is probably the main reason why the agreement is mixed, but the agreement itself does not provide information on how this cooperation will be implemented. Last but not least, in the category of mixed sectoral agreements, the new type of ‘Open Skies’ air transport agreement deserves mention, in particular the 2007 Agreement with the US.61 This agreement aims at allowing a fair and equal opportunity for airlines of both parties to compete in international transportation, bringing about more competition and cheaper flights. Substantive provisions of the agreement cover the granting of rights by each party to the other party, authorisations, and regulatory cooperation in the field of safety and security. Other provisions are of a commercial nature and deal with commercial opportunities, exemption on the basis of reciprocity of customs duties, and charges, for example, for regular equipment of airlines or aircraft stores. It is evident that certain aspects of the agreement are within Community competences while others are not; moreover, there is no clear hierarchy of objectives. All this explains and justifies the mixed character of the agreement. It should be noted that within the framework of the Euro-Mediterranean partnership, a comparable ‘Open Skies’ agreement had already been signed with Morocco in 2006.62 This mixed agreement, signed on the basis of Article 80(2) EC (new Article 100(2) TFEU), which allows the Council to act in the area of sea and air transport, had a pioneer function, covering in one comprehensive text

59 See eg Art 12(1) of the Agreement with Korea, which provides that ‘the Parties shall protect the Global Navigation Satellite Systems against misuse, interference, disruption and hostile acts’. They ‘shall take all practicable steps to ensure the continuity and safety of the satellite navigation services and the related infrastructure in this jurisdiction’. Moreover, the Parties recognise that cooperation to ensure the security of the Galileo system and services is an important common objective (Art 12(3)) and establish ‘an appropriate consultation channel to address GNSS security issues’ (Art 12(4)). Practical arrangements and procedures are to be defined between the competent security authorities of both Parties; see also definition of ‘classified information’ in Art 2. 60 [2008] OJ L/46/25. 61 The agreement was signed on 30 April 2007, [2007] OJ L/134/4. It entered into force on 30 March 2008. 62 OJ [2006] L/386/57.

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A Typology of Mixed Bilateral Agreements market opening, as well as regulatory convergence. Other ‘Open Skies’ agreements are foreseen with other third countries.63

IV.

CONCLUDING REMARKS

On the basis of this short contribution it is difficult to draw general conclusions with great certainty. Only a few, tentative concluding comments can be made. The first, of course, has to do with the size of the Union. The more the Union enlarges, the more the ratification procedure for mixed agreements, as it operates today, becomes unworkable. There is also an increasing awareness about this among Member States. Other contributions in this volume explain the role and potential of ‘cross-pillar mixity’ and mixity in the post-Lisbon situation.64 Around 45 mixed bilateral agreements have been signed so far. The regional approach by the Community to its proximity has brought significant waves of mixed bilateral agreements with individual countries from the neighbourhood. For those agreements with the countries of Central and Eastern Europe and those of the Mediterranean, the political dimension and political dialogue were important considerations. It should be noted, however, that with the last two EU enlargements, the number of mixed agreements has considerably decreased, as the association agreements with the countries of Central and Eastern Europe have been replaced by accession agreements. Also, references to political dialogue in other agreements have led to mixity, and the same can be said for provisions on security, as the Galileo and transport agreements have shown. Another comment has to do with the effect of EU enlargement on mixed bilateral agreements. In this contribution the effect of EU enlargement on the mixed agreement with Switzerland concerning the free movement of persons has been briefly addressed. As was mentioned, each third State that is a party to a mixed agreement needs to take account of EU enlargements. The Union’s approach has always been to consider this ‘accommodation’ as a mere technical operation, and the Act of Accession of 200365 has set up a procedure allowing for such a swift adaptation.66 However, the extension of the PCA with Russia to the new EU Member States met with serious obstacles. The Russian position was that in some of the new Member States, Russian-speaking minorities were discriminated against, and extension of the PCA suddenly became a highly political issue 63 After the completion of this text a similar agreement was signed with Canada, OJ [2009] L/153/10. 64 See chapters 3and 18 by Wessel and Dashwood respectively in this volume. 65 [2003] OJ L/236/33. 66 See Art 6(2), stipulating that the Council, acting unanimously on behalf of the Member States, is to conclude protocols with third countries whereby the accession of the new Member States to the enumerated mixed bilateral agreements with those countries shall be agreed. On this procedure, see K Inglis, ‘The Union’s Fifth Accession Treaty: New Means to make Enlargement Possible’ (2004) 41 CMLRev 943.

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Marc Maresceau instead of being a purely technical matter, only being settled through a political Joint Statement on EU Enlargement and EU–Russia Relations67 a few days before enlargement on 1 May 2004. A somewhat comparable problem has arisen in the relations between the EU and Turkey. The need for the signing of an Additional Protocol to the 1963 Association Agreement following the EU enlargement of 2004,68 has led to a bitter controversy between Turkey and the EU over Cyprus. On the occasion of the signing of the Protocol, Turkey issued a unilateral declaration in which it stated that the Republic of Cyprus did not represent the Turkish Cypriots and that the signature did not amount to any form of recognition of the Republic of Cyprus, which had become a member of the Union on 1 May 2004. This led to the counter-declaration by the EU69 and its Member States, and has also affected the conduct of the accession negotiations with Turkey. Due to Turkey’s failure to apply its obligation of full non-discriminatory implementation of the Additional Protocol to the 1963 Association Agreement, in particular the removal of all obstacles to free movement of goods, including restrictions on means of transport, the Council decided that eight chapters (free movement of goods, right of establishment and freedom to provide services, financial services, agriculture and rural development, fisheries, transport policy, customs union and external relations) could not be opened for accession negotiations and that no chapter could be provisionally closed until Turkey has accepted the commitments resulting from the signing of the Protocol.70 A last comment concerns the increasing number of domains of external cooperation now falling within the scope of Community competence. Certainly, as a result of the various modifications of the basic treaties, new substantive areas have been added to the Community competences. This has created additional legal bases for external action, including the conclusion of agreements. The crucial judgment of the Court of Justice in Portugal v Council would probably have been very different had development cooperation not been explicitly incorporated as a substantive area for Community policy, as a result of the Maastricht Treaty. Without this new area of Community competence, the agreement in question would have had a different legal basis, and this would have seriously affected our analysis. But this is perhaps not the most important point to be made. What is perhaps more intriguing is the colossal impact of implied powers on our subject. It is impossible to work this out in detail in these conclusions, but it is certainly worthwhile asking the question why some agreements are not mixed. Why, for example, are the agreements on readmission,

67 For more details, see P Van Elsuwege, From Soviet Republics to EU Member States. A Legal and Political Assessment of the Baltic States’ Accession to the EU (Leiden, Martinus Nijhoff, 2008) vol 2, 402–07. 68 For text, see [2005] OJ L/254/57. 69 Press Communiqué Council, 21 September 2005, 12541/05 (Press 243). 70 See GAERC Conclusions of 11 December 2006.

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A Typology of Mixed Bilateral Agreements concluded by the Community with a series of third countries,71 not mixed? Less than 10 years ago, the Community had no competence whatsoever in the field of readmission. The first agreement—that with Poland in the early 1990s—was still exclusively signed by the Member States who were parties to the Schengen Agreement. The Community was not even a party to the agreement. Today, readmission has become a clear, exclusive external competence for the EC. The legal basis on which the Community is concluding such agreements is Article 63(3)(b) EC (new Article 79(2)(c) TFEU). This provision allows the Council to adopt measures on immigration policy in the area of illegal immigration and illegal residence, including repatriation of illegal residents, but not a word is said there about the possibility of concluding agreements. Pursuant to the implied powers doctrine, a legal justification for the conclusion of these agreements by the Community can be given. Other comparable examples in totally different fields may be added. Why is the Community exclusively competent to conclude an agreement on taxation of income savings with Switzerland,72 or to conclude a cooperation agreement with Andorra which contains a provision on nondiscrimination against workers?73 All these examples cover areas where the Community—and above all the Member States—was eager to have quick results and where mixity would have been a nuisance. Through implied powers and the avoidance of mixity the Community has been able to achieve greater efficacy. This again confirms the close interrelationship between law and politics in the area of EU external relations.

71 See agreements with the Special Administrative Regions Macao [2004] OJ L/143/97 and Hong Kong [2004] OJ L/17/23; also agreements with Sri Lanka [2005] OJ L/124/43, Russia [2007] OJ L/129/40 and Ukraine [2007] OJ L/332/48. Similar agreements have also been concluded with the Former Yugoslav Republic of Macedonia, Montenegro, Bosnia and Herzegovina, Serbia, and Moldova, see for all these agreements [2007] OJ L/334; for the agreement with Albania, see [2005] OJ L/124/21. 72 For text, see [2004] OJ L/385/30. 73 For text, see [2005] OJ L/135/14.

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3 Cross-pillar Mixity: Combining Competences in the Conclusion of EU International Agreements RAMSES A WESSEL

I.

INTRODUCTION: THE CONCLUSION OF EU INTERNATIONAL AGREEMENTS

T

HE 1997 AMSTERDAM TREATY introduced an explicit legal basis for the European Union to conclude agreements with third States and other international organisations. Although a number of agreements were already concluded by ‘the Council of the European Union’ in 1999 in relation to the association of Iceland and Norway with the Schengen acquis,1 the formal legal basis in Article 24 TEU was first used for the conclusion of the Agreement between the European Union and the Federal Republic of Yugoslavia on the activities of the European Union Monitoring Mission (EUMM) in 2001.2 By

1 See Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway on the establishment of rights and obligations between Ireland and the United Kingdom of Great Britain and Northern Ireland, on the one hand, and the Republic of Iceland and the Kingdom of Norway, on the other, in areas of the Schengen acquis which apply to these States ([2000] OJ L/15/123); Agreement in the form of Exchanges of Letters between the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning committees which assist the European Commission in the exercise of its executive powers ([1999] OJ L/176/53); and Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter’s association with the implementation, application and development of the Schengen acquis ([1999] OJ L/176/36). 2 Agreement between the European Union and the Federal Republic of Yugoslavia on the activities of the European Union Monitoring Mission (EUMM) in the Federal Republic of Yugoslavia ([2001] OJ L/125/2). The reference to Art 24 can be found in Council Decision (2001/352/CFSP) of 9 April 2001 concerning the conclusion of the Agreement between the European Union and the Federal Republic of Yugoslavia (FRY) on the activities of the European Union Monitoring Mission (EUMM) in the FRY [2001] OJ L/125/1.

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Cross-pillar Mixity concluding over 100 agreements, the Union has made full use of this competence.3 By using the Article 24 TEU competence (in conjunction with Article 38 TEU in the case of agreements in the area of police and judicial cooperation in criminal matters—PJCCM), the European Union has entered the international stage as a legal actor with obligations and responsibilities. This turned the provision into the general legal basis for the Union’s treaty making whenever agreements could not be based on the Community Treaty.4 The purpose of this contribution is to look at the phenomenon of ‘mixity’ in two different ways. We shall both analyse the different forms of agreements concluded by the European Union with a legal basis in two distinct pillars of the Union as they existed before the Lisbon Treaty (‘horizontal mixity’) and look at the relationship Member States may have with these agreements (‘vertical mixity’). The fact that to date Member States themselves have not become parties to the EU agreements does not mean that they are fully immune to the agreements concluded by the Union (‘implied mixity’). Section II will address these different forms of mixity. This will be followed by a short analysis of the legal restraints these agreements may have on the external policies of the Member States and the jurisdiction of the European Court of Justice in relation to EU mixed agreements (section III). The investigation of the pre-Lisbon legal regime allows for a better understanding of the current rules. Section IV will analyse this current situation since the entry into force of the Lisbon Treaty, and some final conclusions will be drawn in section V. All analyses will be restricted to agreements to which the European Union has or can become a party. Community/ Member States mixed agreements are extensively dealt with in other parts of this book. 3 Indeed, these ‘agreements’ can be considered treaties in the sense of Art 2(1)(a) of the 1969 and 1986 Vienna Conventions on the Law of Treaties as they fulfil all generally accepted criteria. See, in general, A Aust, Modern Treaty Law and Practice (Cambridge, Cambridge University Press 2007); and J Klabbers, The Concept of Treaty in International Law (The Hague, Kluwer Law International 1996). Following some of Klabbers’ criteria, one could probably conclude that the same holds true for the other international instruments used by the Union: 3 Memoranda of Understanding, 3 Joint Declarations, 1 Joint Statement, 1 Joint Position, and 1 Strategic Partnership. All agreements can be found in the international agreements database of the Commission (http://ec.europa.eu/world/ agreements/). 4 The debate on whether these agreements are concluded by the Council on behalf of the Union or on behalf of the Member States seems not only to be superseded by practice but also accepted by most experts in EU external relations law. See, for recent contributions, R Gosalbo Bono ‘Some Reflections on the CFSP Legal Order’ (2006) 43 CMLRev 354–56; D Thym, ‘Die völkerrechtlichen Verträge der Europäischen Union’ (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 863; C Tomuschat, ‘The International Responsibility of the European Union’ in E Cannizzaro (ed), The European Union As an Actor in International Relations (The Hague, Kluwer Law International, 2000) 181; RA Wessel, ‘The EU As a Party to International Agreements: Shared Competences? Mixed Responsibilities?’ in A Dashwood and M Maresceau (eds), The Law and Practice of EU External Relations—Salient Features of a Changing Landscape (Cambridge, Cambridge University Press, 2008) 145–80; and RA Wessel and G Fernandez Arribas, ‘EU Agreements with Third Countries: Constitutional Reservations by Member States’ in S Blockmans (ed), The European Union and International Crisis Management: Legal and Policy Aspects (The Hague, TMC Asser Press, 2008) 291–308.

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Ramses A Wessel II.

A.

FORMS OF MIXITY IN THE UNION

Was there a need for mixity in the non-Community parts of the EU?

Most agreements to which the EU is a party are based on Article 24 of the former TEU, which read: 1.

When it is necessary to conclude an agreement with one or more States or international organisations in implementation of this Title, the Council, acting unanimously, may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency.

2.

The Council shall act unanimously when the agreement covers an issue for which unanimity is required for the adoption of internal decisions.

3.

When the agreement is envisaged in order to implement a joint action or common position, the Council shall act by a qualified majority in accordance with Article 23(2).

4.

The provisions of this Article shall also apply to matters falling under Title VI. When the agreement covers an issue for which a qualified majority is required for the adoption of internal decisions or measures, the Council shall act by a qualified majority in accordance with Article 34(3).

5.

No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally.

6.

Agreements concluded under the conditions set out by this Article shall be binding on the institutions of the Union.

Similar to the Community treaty-making competences, no provision could be found in the EU Treaty to allow explicitly for either cross-pillar or EU/Member State combinations in the conclusion of EU agreements.5 Article 24 merely referred to ‘the Council’, and even before Lisbon ‘the European Union’ became a party to the agreements. In relation to mixed agreements in the European Community, it is generally held that a need for mixity flows either from the limited scope of the Community’s competences, or from the non-exclusive

5 Nevertheless, Art 102 of the Euratom Treaty does foresee the possibility of ‘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’. See also Ruling of the Court of 14 November 1978, Ruling 1/78, Ruling delivered pursuant to the third paragraph of Article 103 of the EAEC Treaty [1978] ECR 2151.

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Cross-pillar Mixity nature of existing competences.6 In that respect certain views on the legal nature of the European Union may even render the concept of mixity in relation to the former EU absurd. After all, it is still not accepted by everyone that even before Lisbon there was a distinction between the Union and its Member States. In the eyes of those observers the Union was to be equated with the Member States, and any forms of (vertical) mixity would be absurd. I have dealt with these views and the counter-arguments extensively elsewhere,7 and would like to point out here that also in relation to the notion of mixity, a conceptual differentiation between the Union and its Member States is needed to explain why EU agreements were, and still are, not ratified by the Member States and why cross-pillar EU/EC agreements are not the same as classic EC/Member States mixed agreements.8 The complex relationship between the EU, the EC and the Member States as it existed before Lisbon was addressed by Advocate-General Mengozzi in his ECOWAS Opinion.9 The case was about the question whether a decision on financial assistance to the Economic Community of West African States was correctly based on the Common Foreign and Security Policy (CFSP; second pillar), or whether it should have been based on the competences of the Community in the area of development cooperation. As development cooperation, in turn, is a parallel power, the question was relevant when there was (or should be) a collective action by the Member States, or when the Union acted (or should act) on the basis of the CFSP. The controversy on this issue was reflected in the discussion between the Commission and the United Kingdom. The Commission argued that the relation between the Community and the Union could not be equated with the relation between the Community and the Member States. In this model, termed ‘triangular’ by the Advocate-General (para 85), the Union possesses and exercises its own competences, which are not merely equivalent to the collective exercise of the competences retained by the Member States. The United Kingdom, on the other hand, defended a ‘dualist’ model, in which the boundary between the competences of the Community and those of the European Union was treated the same as the boundary separating the Community and its Member States. In other words (and quoting the AdvocateGeneral): according to that approach, an action of the European Union under Title V of the EU Treaty pursuing one of the objectives laid down in Article 11(1) TEU, including the preservation of peace and the strengthening of international security, would never

6 See J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer Law International, 2001) at 25. 7 See eg Wessel, above n 4. 8 See Wessel and Fernandez Arribas, above n 4. 9 Opinion of A-G Mengozzi in Case C-91/05, Commission v Council (‘ECOWAS’ or ‘Small Arms and Light Weapons’), judgment of 20 May 2008, nyr. See C Hillion and RA Wessel, ‘Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness?’ (2009) 46 CMLRev 551.

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Ramses A Wessel encroach on the competences of the Community in the area of development cooperation, even if that action had a similar content to the action of the Community, because, like its Member States, the Union would be exercising concurrent competences with those of the Community, thus rendering recourse to Article 47 EU pointless. (para 86)

Advocate-General Mengozzi did not need many words to correct the United Kingdom, and argued that action by the Union on the basis of the second pillar was something other than collective action by the Member States. He referred to earlier case law for support.10 At that time Article 47 provided that nothing in the EU Treaty should affect the EC Treaties and acts and was invented only to prevent an infringement of the acquis communautaire by Union law, not to deny Member States their (individual or collective) existing external competences. In that sense the function of Article 47 (current Article 40 TEU) indeed differed from that of Article 10 EC (current Article 4, para 3 TEU), which does seem to limit the freedom of Member States by stressing the principle of loyalty. In the eyes of the Court, Article 47 had, and probably still has, an internal (horizontal) Union function, and the question of a possible violation of this provision does not depend on the nature of the competences of the Community (paras 61–62). In contrast to the division of external competences between the EC and its Member States, the boundary between the pillars does not move to the extent that the Community made more use of its external competences. Although the Court in its final judgment did not deal with this question in a similar extensive fashion, it implicitly used the ‘triangular’ model as the basis for the division of competences between the Community, the Union and the Member States (see also below). It thus makes sense to look at both horizontal and vertical mixity in relation to the non-Community parts of the European Union. This will allow us to understand the concept of mixity under the post-Lisbon treaties.

B. Cross-pillar second/third pillar combinations Before the Treaty of Lisbon, the obvious way to approach this type of cross-pillar agreement was to look for agreements that are based both on Article 24 TEU and on Article 38 TEU. While Article 24 could be found in Title V of the EU Treaty (on CFSP), Article 38 was part of Title VI (PJCCM) and served as a bridge to allow the Union to use its treaty-making competence in the area of the third pillar as well: Agreements referred to in Article 24 may cover matters falling under this title.

The legal basis primarily plays a role in the adoption of the decision by which the Council approves the international agreement. It is not referred to in the agreements themselves. 10 See in particular Case C-170/96 Commission v Council [1998] ECR I-2763, and Case C-176/03 Commission v Council (‘Environmental Criminal Law’) [2005] ECR I-7879.

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Cross-pillar Mixity The following agreements have been concluded on the basis of both Article 24 and Article 38: — Agreement between the European Union and Australia on the processing and transfer of European Union-sourced passenger name record (PNR) data by air carriers to the Australian customs service ([2008] OJ L/213/49) — Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement) ([2007] OJ L/204/18) — Agreement between the European Union and the Swiss Confederation on security procedures for the exchange of classified information ([2008] OJ L/181/58) — Agreement between the European Union and the Government of the United States of America on the security of classified information (OJ [2007] L/115/30) — Agreement between the European Union and the Republic of Croatia on security procedures for the exchange of classified information ([2006] OJ L/116/74) — Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security ([2006] OJ L/298/29) — Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway – Declarations ([2006] OJ L/292/2) — Agreement between the Republic of Iceland and the European Union on security procedures for the exchange of classified information ([2006] OJ L/184/35) — Agreement between the European Union and Ukraine on security procedures for the exchange of classified information ([2005] OJ L/172/84) — Agreement between the European Union and the Republic of Bulgaria on security procedures for the exchange of classified information ([2005] OJ L/118/53) — Agreement between the European Union and Romania on security procedures for the exchange of classified information ([2005] OJ L/118/48) — Agreement between the former Yugoslav Republic of Macedonia and the European Union on the security procedures for the exchange of classified information ([2005] OJ L/94/39) — Agreement between the European Union and Bosnia and Herzegovina on security procedures for the exchange of classified information ([2004] OJ L/324/16) — Agreement between the European Union and the Republic of Iceland and 35

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Ramses A Wessel the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol thereto ([2004] OJ L/26/3) — Agreement on mutual legal assistance between the European Union and the United States of America ([2003]OJ L/181/34) — Agreement on extradition between the European Union and the United States of America ([2003] OJ L/181/27) Taking into account their subject matter, many of these agreements in fact concern third pillar measures only. One could argue that in these cases a reference to Article 38 TEU would have sufficed, since a reference to Article 24 is already included in that provision. In these cases the mere reference to a dual legal basis would be too formal an argument to decide on their character as cross-pillar agreements. On the other hand, some agreements do indeed touch upon both CFSP and PJCCM issues alike. This would at least hold true for the agreements on security procedures for the exchange of classified information. The classified information addressed in these agreements is not specified as being related to either CFSP or PJCCM material, and may relate both to information in the framework of the European Security and Defence Policy (ESDP) and the participation of these States in ESDP operations, as well as to information in the area of police cooperation. This would make them truly cross-pillar. At the same time, the Agreement between the EU and the International Criminal Court (ICC) reveals that recourse to a third pillar base was not always necessary—even in a case where the subject matter seems to be related more to police and justice cooperation than to foreign and security policy.11 Leaving out a reference to Article 38 may be problematic from the point of view of judicial protection, given that third pillar instruments could be subject to judicial review, including arguably international agreements concluded on the basis of Article 38 TEU.12 Indeed, the division of competences over the pillars was something that was not dealt with by the Council in a consistent and fully understandable fashion. The Agreement with Bosnia and Herzegovina on security procedures for the exchange of classified information, and the Agreement with Iceland and Norway on mutual assistance in criminal matters are not published under the OJ heading ‘Acts adopted under Title V of the Treaty of the European Union’ but as general 11 Council Decision 2006/313/CFSP of 10 April 2008, concerning the conclusion of the Agreement between the ICC and the EU, is based on Art 24 EU only ([2006] OJ L/115/49). This is also the only agreement which gives a definition of the European Union by referring to the institutions and relevant EU actors (the Council, the Secretary General/High Representative, the General Secretariat and the Commission of the European Communities [sic]). It explicitly states that ‘“EU” shall not mean the Member States in their own right’. 12 See C Hillion and RA Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 79.

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Cross-pillar Mixity acts of the Council alongside Community measures. The reason may be that somehow these decisions have no CFSP or JHA number but an EC number (2004/731/EC and 2004/79/EC respectively). Nevertheless, Articles 24 and 38 are the only articles mentioned as the legal basis for these acts, and there is nothing which would legitimise the deviation from the general rule to publish them with a CFSP or a JHA number. In fact, one may wonder what happened to the sensitivity on the side of certain Member States in relation to these issues now that they suddenly allowed for acts with a Community number to be adopted on the basis of the non-Community pillars. A similar situation may be found in relation to the decision concerning the conclusion of the Agreement with the United States on the security of classified information.13 This decision is presented under the heading ‘Acts adopted under Title V of the EU Treaty’ (hence CFSP), but it has a third pillar number (2007/274/JHA). Again, the Council did not seem particularly interested in a strict separation of the distinct competences when adopting decisions concerning the conclusion of EU agreements. A case in point is also formed by its decision concerning the conclusion of the Agreement with the European Space Agency, which was published as an ‘Act adopted under the EC Treaty/Euratom Treaty’, was numbered 2008/667/JHA (hence hinting at a third pillar measure), but which was merely based on Article 24 (implying that it is a CFSP measure only).14 This is all the more striking since it was possible for the Council to use a combined CFSP/JHA numbering. The Decision concerning the conclusion of the Agreement with Former Yugoslav Republic of Macedonia is numbered 2005/296/CFSP, JHA.15 The text of this Decision, however, is the same as the text of the other Decisions concerning agreements on exactly the same topic with other States. Similarly, the Decision on the signing of the 2007 PNR Agreement with the United States was numbered 2007/551/CFSP/JHA (note the forward slash instead of the comma). In this case, however, one may wonder why the reference to CFSP was included, as the subject matter seems to be fully covered by the third pillar.16 The Council has obviously been struggling with the correct use of Decision numbers in decisions concerning the conclusion of cross-pillar agreements, something which may reflect the more general struggle of the EU bodies to choose between the pillars in substantive terms too.

13

Council Decision 2007/274/JHA of 23 April 2007, [2007] OJ L/115/29. Council Decision 2008/667/JHA of 7 April 2008, [2008] OJ L/219/58. Council Decision 2005/296/CFSP, JHA of 24 January 2005, [2005] OJ L/94/38. 16 As implicitly suggested by the ECJ in Joined Cases C-317/04 and C-318/04 European Parliament v Council [2006] ECR I-4721, and confirmed by the subsequent conclusion of the agreement on the basis of Title VI TEU. 14 15

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Ramses A Wessel C. Cross-pillar EU/EC combinations Cross-pillar measures to create a coherent external policy were already explicitly promoted by the European Council at Feira in 2000 when, in relation to third pillar policy, it said that it should be incorporated into the Union’s external policy on the basis of a ‘cross-pillar’ approach and ‘cross-pillar’ measures. Once the objectives have been defined, they should be implemented by making joint use of the Community provisions, those available under the CFSP and those on cooperation laid down in Title VI of the TEU.17

This, however, was easier said than done. Where second/third pillar combinations—when limited to true cross-pillar agreements—are already scarce, this is even more the case in relation to EU/EC combinations. The classic example is formed by the Agreement between the European Union, the European Community and the Swiss Confederation, concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis.18 Because this agreement concerned both Community and other Union issues, and a combination of an EC and an EU legal basis was not considered to be possible, the Council adopted two Decisions, one ‘on behalf of the European Union’ (with a reference to Articles 24 and 38 EU) and one ‘on behalf of the European Community’ (with a reference to Articles 62, point 3, 63, 66 and 95 in conjunction with Article 200(2) EC).19 The entry into force of this agreement took some time. Not only did Switzerland need a transition period of two years to be able to comply with its constitutional procedure (in this case a referendum),20 but also, after Switzerland had notified the ratification of the agreement on 23 March 2006, it was still being only provisionally applied due to the fact that the EU had not yet ratified it. The reason seemed to be the application of Article 24(5) by Member States in view of the obligations imposed directly upon them and the agreement’s delicate subject matter.21 In this case the Council decided on a procedure in two stages, allowing Member States to follow domestic parliamentary procedures before actually concluding the agreement. Indeed, the 2004 17 See ‘A Strategy for the External Dimension of JHA’, doc 14366/3/05, REV 3, at para 6. Cf also M Cremona, ‘EU External Action in the JHA Domain: A Legal Perspective’ (2008) EUI Working Papers LAW 2008/24, at 14. 18 [2004] OJ L/370/78. 19 Council Decision 2004/849/EC of 25 October 2004, [2004] OJ L/368/26 and Council Decision 2004/860/EC of 25 October 2004, [2004] OJ L/370/78. 20 See . 21 See, eg, Art 17(2): ‘Implementation of the provisions referred to in paragraph 1 shall create rights and obligations between Switzerland, of the one part, and, depending on the case, the European Union, the European Community and the Member States, in so far as they are bound by these provisions, of the other part.’ See also G de Kerchove and S Marquardt, ‘Les accords internationaux conclus par l’Union Européenne’ (2004) 50 Annuaire Français de Droit International 813. See more extensively on the function and use of Art 24(5), Wessel and Fernandez Arribas, above n 4.

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Cross-pillar Mixity Decisions concerned the signing of the agreement, whereas an EC and an EU Decision of January 2008 allowed for its conclusion22 and its subsequent entry into force on 1 March 2008.23 This mechanism presents a two-step procedure ‘comparable to the signature and ratification steps’,24 and has also been used in relation to the Agreement with the United States on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security.25 A similar situation occurred in relation to the agreement on the accession of Liechtenstein to the above-mentioned EU–EC–Switzerland Agreement.26 Again, two separate Decisions were taken by the Council, one on behalf of the European Union and one on behalf of the European Community.27 Again, the Protocol could only be signed ‘Subject to its conclusion at a later date’ (preamble point 2). At the same time the protocol reveals the capacity of the EU/EC combination to conclude not only bilateral but also multilateral international agreements. In the light of the ECOWAS judgment of the European Court of Justice (section II.A. above), the division of competences between the EC and the EU (CFSP and PJCCM) deserved renewed attention. On the basis of this judgment it could be concluded that EU/EC cross-pillar agreements were to become even more scarce.28 The Court seemed to limit the possibilities for combined Community/CFSP decisions. The Community was to adopt a measure not only when that measure is, in terms of aim and content, mainly related to an area of Community competence, but also if the measure was both about EC and CFSP matters, without one being incidental to the other. Only when a measure was intended to implement mainly Union objectives, and failing a Community competence, could the Union act (compare paras 71 and 72 of the judgment)— irrespective of a possible relationship with Community objectives. This comes close to a similar situation in the third pillar, where—irrespective of the main purpose of Article 47 TEU—the Court has decided that situations could be 22 Council Decisions 2008/146/EC, [2008] OJ L/53/1 and 2008/149/JHA, [2008] OJ L/53/50. See also Conclusions of the Council of 6 June 2003, Doc 10409/03 of 18 June 2003. See also J Monar, ‘The EU as an International Actor in the Domain of Justice and Home Affairs’ (2004) 9 European Foreign Affairs Review 395; and T Georgopoulos, ‘What Kind of Treaty-making Power for the EU?’ (2005) 30 ELRev 193. 23 See the special announcement in [2008] OJ L/53/18. 24 G Hafner, ‘The Amsterdam Treaty and the Treaty Making Power of the European Union’ in G Hafner (ed), Liber Amicorum Professor Ignaz Seidl-Hohenveldern: In Honour of his 80th Birthday (The Hague, Kluwer Law International, 1998) at 275. 25 [2006] OJ L/298/27. 26 Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland; see the Treaties Office Database (http://ec.europa.eu/world/ agreements). 27 Council Decisions 2008/262/EC, [2008] OJ L/83/5 and 2008/261/EC, [2008] OJ L/83/3, respectively. 28 See also Hillion and Wessel, above n 12.

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Ramses A Wessel envisaged in which the Community encroaches upon competences of the Union in other pillars. In the PNR case, the Court held that the EU–US Agreement on Passenger Name Records should not have been based on the Community Treaty (Article 96 EC, internal market) but on the Union Treaty.29 Hence, in determining the ‘centre of gravity’ of a Community instrument, the Court was no longer restricted to the legal bases offered by the Community Treaty itself, but – even before Lisbon – it was compelled to use the overall Union legal order as the interpretative framework.30 Before the entry into force of the Lisbon Treaty (but perhaps even now—see below), the wish of the Court to hold on to a clear separation between different external measures ran the risk of creating a negative side-effect. After all, after ECOWAS the Council may have been tempted to refrain from referring to Community measures or initiatives when adopting other Union instruments, in order to make clear that it was dealing with non-Community measures. However, in the case of EU/EC cross-pillar agreements, a combination of Community and other Union issues formed the very essence of the legal basis of agreement. Ironically, one might have imagined a turn to classic mixed agreements once an agreement was not primarily intended to implement non-Community objectives.31

D. EU/Member State combinations To date we have not seen any ‘vertical mixity’ in the sense of agreements concluded by both the EU and the Member States. Indeed—and perhaps ironically—the agreements are concluded by the Union on an exclusive basis. For proponents of the ‘EU equals MS thesis’ as far as CFSP is concerned, this will not come as a surprise. It should, however, be kept in mind that most Member States generally did not consider the pre-Lisbon EU agreements appropriate to be subjected to their regular parliamentary procedure.32 As ratification by Member State governments was not required for pre-Lisbon agreements concluded by the Union, one could indeed argue that their constitutional requirements simply did not apply. Many of the agreements do, however, concern sensitive issues (related 29

Joined Cases C-317/0 and C-318/04 European Parliament v Council [2006] ECR I-4721. In this respect, see also Case C-301/06 Ireland v Council and European Parliament (judgment of 10 February 2009, nyr), in which Ireland unsuccessfully argued that the Data Retention Directive (2006/24/EC) should not have been based on Art 95 EC but on Art 34 TEU. See also R H van Ooik, ‘Cross-pillar Litigation Before the ECJ: Demarcation of Community and Union Competences’ (2008) 4 European Constitutional Law Review 399. 31 See also Hillion and Wessel, above n 12. 32 The general reluctance on the part of Member States to invoke national constitutional requirements in relation to the conclusion of EU agreements is confirmed by de Kerchove and Marquardt, cited above n 21, at 813: ‘… dans la pratique suivie jusqu’à présent aucun État membre n’a invoqué le respect de ses règles constitutionnelles lors de la conclusion par le Conseil d’accords dans le domaine de la PESC.’ 30

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Cross-pillar Mixity either to justice and home affairs, or to military actions), and agreements concluded by the EU may very well bind the Member States indirectly, resulting in what could be termed ‘implied mixity’. Apart from the fact that, in general, the agreements concluded by the Union seem to be restraints on Member State competences to conclude new agreements covering the same issues,33 some agreements explicitly refer to the Member States. Apart from a few cases in the area of ESDP,34 clearer examples can be found in some third pillar agreements pursuant to which Member States have obligations as well (see below).35 In some of these cases the subject matter of the EU agreements was thought to affect citizens’ rights and formed a reason for Member States to invoke Article 24(5) TEU, allowing for a provisional application of the agreements pending domestic constitutional procedures in certain Member States.36 The provision was invoked in relation to the agreements with the United States on extradition and mutual legal assistance,37 as well as with respect to the agreements with Iceland and Norway on mutual legal assistance in criminal matters38 and to the agreement with Switzerland on the implementation, application and development of the Schengen acquis.39 The procedure has not been used in regard to CFSP or ESDP agreements. Nevertheless, it was of a general nature and could be applied to all Union agreements. Although there are no references in other agreements, the use of Article 24(5) may been inferred from the content and the status of some agreements, as well as from the procedure used. This leads us to conclude that Members States also applied Article 24(5) in the case of the agreement with Iceland and Norway on the surrender procedure,40 and in both PNR agreements with the United States.41

33

Hillion and Wessel, above n 12. See the agreement between the EU and NATO on the Security of Information ([2003] OJ L/80/36), and in some framework participation agreements pursuant to which Member States have to make a declaration ‘waiving certain types of claims against the participating third States concerned’. See also A Sari, ‘The Conclusion of International Agreements by the European Union in the Context of the ESDP’ (2008) 57 ICLQ 53 at 81. 35 See in particular the two 2003 agreements with the United States on extradition and on mutual legal assistance. Both agreements have been published in [2003] OJ L/181/27 and L/181/34 respectively. On the negotiations on and content of the agreements, see G Stessens ‘The EU–US Agreements on Extradition and on Mutual Legal Assistance: How to Bridge Different Approaches’ in G de Kerchove and A Weyembergh (eds), Sécurité et justice: enjeu de la politique extérieure de l’Union européenne (Bruxelles, Editions de l’Université de Bruxelles, 2003) 263. Stessens points to the fact that certain results in these agreements would have been unattainable for individual States in bilateral agreements with the US. 36 See Wessel and Fernandez Arribas, above n 4. 37 [2003] OJ L/181/27 and L/181/34; see also Council Conclusions, 13 June 2003, Press release No 10409/03. Council Decision concerning the signature of an Agreement between EU–USA on mutual legal assistance and extradition; and Council Conclusions, 26 October 2006, Press release No 10959/2/06 (REV 2). Status of ratification of EU–USA Agreements of 25 June 2003 on extradition and of bilateral instruments. See further de Kerchove and Marquardt, above n 21, at 823. 38 [2004] OJ L/26/3. 39 [2004] OJ L/370/78. 40 [2006] OJ L/292/2. 41 [2006] OJ L/298/29; and [2007] OJ L/204/18. 34

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Ramses A Wessel The fact that these agreements contain special and specific duties for Member States may have triggered the ‘national constitutional requirements’. This is particularly clear in the provisions on the application of the agreement in relation to (already existing or new) bilateral extradition or mutual legal assistance treaties with the US. These provisions lay down the rules of application of the treaty, and divide competences between the Union and its Member States. In fact, these two agreements with the US provide for a marginal role for the Union as such: most rights and obligations rest with the ‘State’, which may either be a EU Member State or the US. An example may be found in Article 10 of the extradition agreements: If the requested State receives requests from the requesting State and from any other State or States for the extradition of the same person, either for the same offence or different offences, the executive authority of the requested State shall determine to which State, if any, it will surrender theperson.

Similar references to State obligations can be found in the Treaty on mutual legal assistance. See, for example, Article 4: Upon request of the requesting State, the requested State shall, in accordance with the terms of this Article, promptly ascertain if the banks located in its territory possess information on whether an identified natural or legal person suspected of or charged with a criminal offence is the holder of a bank account or accounts. The requested State shall promptly communicate the results of its enquiries to the requesting State.

Formally, however, even in these cases the Member States are not bound by the agreements vis-à-vis the United States; they only have obligations to uphold the Treaty provisions in relation to the EU. This is confirmed by the fact that the US thought it necessary to ask for written instruments in which the Member States stated that they considered themselves bound by the agreements.42 This may very well be the reason for the somewhat peculiar provision in Article 3(2)(a) of the agreements, pursuant to which the European Union shall ensure that each Member State acknowledges, in a written instrument between such Member State and the United States of America, the application … of its bilateral mutual legal assistance treaty in force with the United States of America.

Obviously the fact that Member States would be bound by the agreements as a matter of Union law did not fully reassure the third State in question. In this situation of clear ‘shared’ or ‘parallel’ competences, a mixed agreement could have been the obvious solution. The new agreement could thus have replaced the original bilateral treaties, rather than making them part of a new complex

42 See S Marquardt, ‘La capacité de l’Union européenne de conclure des accords internationaux dans le domaine de la coopération policière et judiciaire en matière pénale’ in de Kerchove and Weyembergh, above n 35, 179 at 193; and Monar above n 22, 395.

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Cross-pillar Mixity system.43 In this case this would not have had an impact on the speed of the ratification process. The ‘written instruments’ had to be signed by the Member States, but the Union had an obligation to ‘ensure’ this. It took many Member States more than five years to conclude these instruments, and because of the sensitive subject matter some national governments were also obliged to use national parliamentary approval procedures for the conclusion of the EU–US agreements themselves. In the end, 56 ratifications proved to be necessary on both sides of the Atlantic to be able to conclude two (in fact bilateral) agreements.44 Similar to the above-mentioned agreements, the agreement between the EU and Iceland and Norway on legal assistance contains obligations for Member States, which are clearly stated in Article 6(4): … the entry into force of this Agreement creates rights and obligations between Iceland and Norway and between Iceland, Norway and those Member States in respect of which the EU Mutual Assistance Protocol has entered into force.

In addition, the key role of Member States in the fulfilment of the agreement is reflected in Article 4, which only regulates possible disputes—regarding the interpretation and application of the agreement—between Iceland or Norway and Member States of the EU, without making any reference to disputes between the contracting parties to the agreement, Iceland, Norway and the EU. The agreement between Iceland and Norway and the EU on the surrender procedure contains a similar provision on dispute settlement in Article 36, and the obligations of the Member States may be inferred from Article 1(2), which stipulates that: The Contracting Parties undertake, in accordance with the provisions of this Agreement, to ensure that the extradition system between, on the one hand, the Member States and, on the other hand, the Kingdom of Norway and the Republic of Iceland shall be based on a mechanism of surrender pursuant to an arrest warrant in accordance with the terms of this Agreement.

This article thus contains an obligation for the EU to ensure the application of the extradition system by Member States, and an indirect obligation for Member States, since the fulfilment of the obligation by the EU entails the obligation for Member States to apply the extradition system established by the agreement. Lastly, even without an explicit reference to obligations of Member States, the subject matter of EU agreements may lead to ‘implied mixity’. Thus, the PNR agreements set out obligations for the EU (and mainly for air carriers) and not for Member States. Nevertheless, the content of the obligations potentially affects

43

See also Thym above n 4 at 28; Marquardt above n 42 at 193; and Georgopoulos above n 22 at

207. 44

See Cremona, above n 17, at 24.

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Ramses A Wessel fundamental rights—especially the right to the protection of personal data— rights that are usually protected by national constitutions through the right to personal privacy.45

E. EU/EC/Member State combinations Cross-pillar dimensions with Member State involvement are not entirely alien in agreements concluded on the basis of pre-Lisbon EU law. A key example of an early combination of EC, CFSP and PJCCM, and Member States issues can be found in the Partnership and Cooperation Agreements (PCAs) concluded with the Newly Independent States (NISs) at the end of the 1990s following the disintegration of the Soviet Union. Although these agreements were signed as mixed agreements by the Community and the Member States, the latter were ‘acting in the framework of the European Union’. As observed by Hillion: From the outset the PCAs have been characterised by a ‘cross-pillar’ dimension and as such epitomised the emergence of external activities of the Union, resulting from interaction between the EC, the Member States and the EU acting on the basis of Title V and VI. In hindsight, it may be suggested that the PCAs are not only mixed agreements in the classical sense [ . . .], they also anticipate another form of mixity, namely cross-pillar mixity, inasmuch as they relate to the different suborders of the Union.46

Indeed, considering the non-exclusive nature of most external competences, one could have expected the frequent conclusion of agreements with third States or organisations to which the Union, the Community and the Member States would be a party. Member State involvement could then result from competences they have retained under either the EU Treaty or the EC Treaty. Similarly, the need for an EU/EC combination could emerge out of the fact that the agreement would cover both Community and non-Community Union issues (compare the agreement with Switzerland). Nevertheless, we have not been able to witness such a ‘mixed-mixed agreement’. This is not to say that the option was entirely theoretical. The Council and Commission have actually considered the possibility of mixed-mixed agreements, since the negotiations on the Stabilisation and Association Agreements with Macedonia and Croatia in 2000 and the Euro-Med Association Agreement with Algeria in 2002.47 The debate returned during the negotiations for the 2006 Framework Agreement on Partnership and Cooperation with Thailand, Indonesia, Singapore, The Philippines, Malaysia and Negara 45

See Georgopoulos, above n 22, at 202. C Hillion, The Evolving System of EU External Relations as Evidenced in the EU Partnerships with Russia and Ukraine (PhD thesis, Leiden, 2005) 58; see also C. Hillion, The European Union and its Eastern European Neighbours: A Laboratory for the Organisation of EU External Relations (Oxford, Hart Publishing, 2010). 47 See chapter twelve by Frank Hoffmeister in this volume. 46

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Cross-pillar Mixity Brunei Darussalam.48 In the end, however, the agreement was concluded as a traditional Community/Member State mixed agreement. A similar debate took place on the EU’s accession to the ASEAN Treaty of Amity and Cooperation. As the relevant documents (such as Council Doc 15772/06) are not in the public domain, it is difficult to find out why in the end it did not work out, but it may be assumed that sensitivity on the side of certain Member States, the unclear division of Member State and Union competences, and the difficult combination of Union and Community procedures (for instance in relation to the role of the European Parliament) may have lead to the more classic mixed agreement, leaving out the Union as a party.49 One could argue that for those issues falling under CFSP/ESDP and PJCCM, there was no longer a need for Member States to become a party. In fact, leaving out the Member States may have been seen as a way to speed up the ratification procedures. After all—and as shown, for instance, by the lengthy ratification period of the Cotonou Agreement—entry into force is often delayed because of slow procedures at the domestic level. When many of the clauses on political issues (eg on anti-terrorism, human rights and democracy, weapons of mass destruction, cooperation with the International Criminal Court) could be part of a separate but connected agreement concluded by the European Union, this could limit the need for Member States to become a party to the agreement concluded by the Community.50 In 2005 this question explicitly emerged during the negotiations with Iran on economic (trade) and political (the fight against terrorism and non-proliferation) issues. Rather than opting for a combined EU/EC agreement, consideration was given to concluding two separate agreements with mutual references in relation to, for instance, enforcement and suspension questions. However, the question of how violations of either agreement should have an impact on the other could not be answered.51 After these experiments the EU stuck to classical mixity, albeit with a role for the High Representative in the negotiations whenever agreements included CFSP issues. This may be understandable from a practical procedural point of view, but it does not do justice to the competences the European Union by that time 48 At least in the literature the option was also mentioned in relation to a possible follow-up to the PCA between the Community and Russia. Two out of the four ‘road maps’ established by the EU and Russia in May 2005 were dedicated to CFSP and PJCCM. See M Emerson, F Tassinari and M Vahl, ‘A New Agreement between the EU and Russia: Why, what and when?’ (2006) CEPS Policy Brief No 103, 5. Similar suggestions were made in relation the new EU–Ukraine Enhanced Agreement; see C Hillion, ‘Mapping-out the New Contractual Relations between the European Union and its Neighbours: Lessons from the EU–Ukraine ‘Enhanced Agreement’ ’ (2007) 12 European Foreign Affairs Review169: ‘the new EU–Ukraine Treaty will almost inexorably be an association agreement based upon Article 310 EC, [and] its likely cross-pillar dimension, both in terms of objectives and content, may mean that the Union could become a concluding party to the new agreement, alongside the Community and the Member States’ (though this was written before Ecowas). 49 See Thym, above n 4, at 48. 50 See M Petite, ‘Current Legal Issues in the External Relations of the European Union’ (2006) EUI Working Papers, LAW No 2006/38, 4. 51 See chapter twelve by Frank Hoffmeister in this volume.

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Ramses A Wessel enjoyed in the area of CFSP and PJCCM. While a combination of procedures remained difficult since different legal bases were required, with the agreements with Switzerland and Liechtenstein the Union proved that by using two separate Council Decisions, account could be taken of the characteristics of both the EU and the EC treaty-making procedures.

III.

RESTRAINTS ON MEMBER STATES’ EXTERNAL COMPETENCES AND THE JURISDICTION OF THE EUROPEAN COURT OF JUSTICE

Two additional questions emerge in relation to the legal status of concluded cross-pillar agreements. The first one relates to the possible restraints on Member States’ external actions imposed by these agreements; the second concerns the jurisdiction of the European Court of Justice (ECJ) with regard to the preliminary procedure, as well as to former Article 300(6) EC (the opinion of the Court on compatibility with the Treaty).

A. Cross-pillar agreements: the effects on Member States In relation to the first question—the possible restraints on Member States’ external actions—it has already been argued that even pre-Lisbon agreements concluded by the European Union may be considered as forming ‘an integral part of Union law’, comparable to the Haegeman doctrine in Community law.52 This view is supported by the reference in former Article 24(6) TEU to the fact that the agreements bind the institutions.53 But this provision differed from Article 300(7) EC, which did refer to the Member States. While there are good reasons to assume that decisions in the former non-Community sub-orders of the Union were also binding on Member States, and that such decisions cannot be ignored in their domestic legal orders,54 particularly in view of the loyalty principle, it is not obvious that the principles of ‘direct effect’ and ‘supremacy’ formed part of pre-Lisbon Union law.55 This implies that the domestic effect (applicability) of the agreements depends on national (constitutional) arrangements. As we have seen, the practice of the PJCCM agreements indeed reveals that former Article 24(5) TEU was used in a way to allow national parliaments to let their governments approve the treaty before the Union adopts the final ratification decision. 52 As provided by the ECJ in relation to international agreements concluded by the European Community: Cases C-181/73 Haegeman [1974] ECR 449 and C-104/81 Kupferberg [1982] ECR 3641. See more extensively Hillion and Wessel, above n 12. See in the same line Thym, above n 4, at 38. 53 Hillion and Wessel, above n 12. 54 Ibid. 55 Cf also K Lenaerts and T Corhaut, ‘Of Birds and Hedges: the Role of Primacy in Invoking Norms of EU Law’ (2006) 31 ELRev 287.

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Cross-pillar Mixity Is this different in the case of cross-pillar EU/EC combinations? As far as their domestic effects are concerned, the most obvious solution would be to make the domestic legal affects of EU agreements dependent on the legal status of other EU instruments in the respective pillars. Whenever the Community is also a party, this would bring in the Community rules regarding the status of international agreements. At the same time even before Lisbon the scope of the loyalty principle (then Article 10 EC) stretched beyond Community law and is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries.56

This case law means that, even outside the sphere of Community powers, Member States were not only to refrain from infringing EC law, they should also abstain from acting in a way which would make the Community’s tasks more difficult or jeopardise the attainment of the objectives of the EC Treaty.57 This is not to say that the effects of non-Community parts of cross-pillar agreements can be established only on the basis of Community law. Following the Opinion of Advocate-General Mengozzi in the ECOWAS case (section II.A. above), the difference between acts of the Member States and acts of the Union in pillars two or three remains important in establishing their current legal effects. However, the arguments presented here stress the role of the loyalty obligation beyond Community law; and this duty becomes even more clear when different issue areas of the Union are combined in such a way that it becomes difficult to hold on to a clear separation between the pillars.

B. The jurisdiction of the Court of Justice Ever since the Haegeman case referred to in section III.A. above, it has been settled case law that preliminary questions can also be asked by national courts and tribunals in relation to international agreements. With regard to the Court’s jurisdiction in this regard in relation to mixed agreements, some light was shed by the judgment of the Court in Hermès and later in Dior.58 Despite the possible different interpretations that can be applied to the case law of the Court in this

56 Emphasis added. Cases C-266/03 Commission v Luxembourg [2005] ECR I-4805 and C-433/03 Commission v Germany [2005] ECR I-6985. See more extensively Hillion and Wessel, above n 12. 57 On the application of Art 10 EC beyond the scope of Community competence, see also CWA Timmermans, ‘Organising Joint Participation of EC and Member States’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 239. 58 Case C-53/96 Hermès [1998] ECR I-3603 and Joined Cases 300/98 and 392/98 Parfums Christian Dior [2000] ECR I-11307. See chapter six by Panos Koutrakos in this book.

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Ramses A Wessel regard, there seems to be a consensus that, in principle, the Court is not precluded from interpreting mixed agreements or from defining the obligations of the Community.59 Obviously this case law relates to Community law, and the question is to what extent it holds in the case of cross-pillar agreements. With regard to cross-pillar EU/EC combinations (such as the EU/EC–Switzerland agreement) one could argue that the fact that the Union joins as an additional party does not affect the jurisdiction of the Court in relation to the Community’s involvement. At least as regards third pillar issues, one could even point to former Article 35 TEU, which allowed for the Court to give preliminary rulings in relation to a number of third pillars instruments, including—arguably—international agreements concluded on the basis of Article 38 TEU. The same does not hold true for possible CFSP parts in the joint EC/EU agreements, but in general it might have become quite difficult for the Court to establish clear dividing lines between the different dimensions of an international agreement. Would it really make sense for the Court to refuse to give a statement on parts of a mixed EU/EC agreement when its views would be necessary to understand the Community parts? As in classic EC/MS mixed agreements, the division of competences is not spelled out in detail in the existing EC/EU agreements, which makes it difficult for everyone involved (including the parties to the agreement and the Court) to link specific provisions in the agreement to specific pillars. Similar conclusions may be drawn with regard to the Court’s jurisdiction in relation to second/third pillar combinations. Since the role of the Court was not excluded in relation to third pillar measures, and the uniform application of the agreements as part of EU law is necessary to prevent Member States from ignoring the EU agreements in their own external relations, it would have been difficult for the Court to dispose of EU cross-pillar agreements too easily. Even before Lisbon it had become increasingly difficult not to view the external relations on the basis of a Union-wide perspective.60 Lastly, the Court may have had a role to play by giving an opinion on the compatibility of a planned (mixed) agreement with the Community Treaty

59 As also confirmed by the Court in Case C-431/05 Merck Genéricos [2007] ECR I-7001 and Case C-239/03 Etang de Berre [2004] ECR I-9325. See also J Heliskoski ‘The Jurisdiction of the European Court of Justice to Give Preliminary Ruling on the Interpretation of Mixed Agreements’ (2000) Nordic Journal of International Law 395; A Dashwood, ‘Preliminary Rulings on the Interpretation of Mixed Agreements’ in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law: Liber Amicorum in Honour of Lord Slynn of Hadley (The Hague, Kluwer Law International, 2000) vol 1, 167; P Koutrakos, ‘The Interpretation of Mixed Agreements under the Preliminary Reference Procedure’ (2002) 7 European Foreign Affairs Review 25. 60 RA Wessel, ‘The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation’ (2009) 5 European Constitutional Law Review 1; cf also S Stetter, EU Foreign and Interior Policies: Cross-pillar Politics and the Social Construction of Sovereignty (London, Routledge, 2007); and A Bendiek, ‘Cross-Pillar Security Regime Building in the European Union: Effects of the European Security Strategy of December 2003’ (2003) European Integration Online Papers 9 (http://eiop.or.at/eiop/texte/2006–009a.htm).

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Cross-pillar Mixity (Article 300(6) EC). The EU Treaty did not contain a similar provision, which means that for second/third pillar combinations this procedure could not be used, unless an effect of such an agreement on the EC Treaty could be envisaged.61 However, there are no reasons to exclude the possibility of a Court opinion for cross-pillar EU/EC agreements. After all, the fact that the EU would also become a party does not deprive the Commission of the duty to make sure that no conflicts with the Community Treaty arise after the conclusion of an agreement.

IV.

EU MIXITY AFTER LISBON

The Lisbon Treaty has integrated the European Community62 into the European Union, and the new Treaty on European Union (TEU) explicitly provides that ‘The Union shall have legal personality’ (Article 47), thus bringing to an end the academic discussion on the legal status of the Union and the two different legal personalities of the Union and the Community.63 That there is still some uneasiness on the part of some Member States is reflected in Declaration No 24, attached to the Lisbon Final Act: The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties.

Like many Declarations, this one also states the obvious. After all, the principle of attributed (or conferred) powers forms a starting point in international institutional law, and is even explicitly referred to in the new TEU, this time with no exception for the CFSP: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. (Article 5)64

One reason for a single legal personality of the Union was to make an end to the complications relating to cross-pillar international agreements. The discussion on this issue dates back to the times of the European Convention preparing the 61

See on this question also Hillion and Wessel, above n 9. The European Atomic Energy Community (Euratom) will not be part of the new structure and will continue to be a separate international organisation. See also Protocol 2 annexed to the Treaties. 63 See, on this discussion, the many references in RA Wessel, ‘The International Legal Status of the European Union’ (1997) 2 European Foreign Affairs Review 109; and RA Wessel, ‘Revisiting the International Legal Status of the EU’ (2000) 5 European Foreign Affairs Review 507. 64 On the basis of Art 5 TEU the principles of proportionality and subsidiarity also apply to all Union policy areas, although the Protocol on the Application of the Principles of Subsidiarity and Proportionality seems to focus on ‘legislative acts’ only, and these acts cannot be used for CFSP matters. 62

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Ramses A Wessel Intergovernmental Conference for the Constitutional Treaty. In 2002 the Working Group on legal personality reported the following: A broad consensus (with one member against) emerged in the Working Group in favour of [a single personality of the Union]. The Working Group took the view that giving the Union a legal personality additional to those that now exist would not go far enough in providing the clarification and simplification necessary in the Union’s external relations. In particular, it was suggested that if the Union were to be involved in concluding cross-pillar mixed international agreements (touching both on the competences of the Community and the Union under Titles V and VI of the TEU), the situation would be too complicated as the agreements would have to be concluded by both the Union and the Community. With a single legal personality the subject of international law will be the Union, which will replace the Community for that purpose.65

Nevertheless, some separation has been maintained. The new TEU contains all institutional provisions, whereas all policy areas (including the current EU third pillar on PJCCM) has become part of the reformed EC Treaty, the new Treaty on the Functioning of the European Union (TFEU). It is therefore striking that both the CFSP and the European Security and Defence Policy (now renamed to Common Security and Defence Policy, CSDP) have remained part of the TEU. Indeed, the former second pillar is the only policy area that will continue to have a separate status in EU law, and even within Title V on the ‘General Provisions on the Union’s External Action’ there is a special section on ‘Special Provisions on the Common Foreign and Security Policy’ (see further below). The reasons for this continued separation could already be found in the mandate for the Lisbon Intergovernmental Conference, in which Member States could not agree on a transfer of the CFSP provisions from the TEU to the TFEU. The treaty-making competence of the Union is maintained, but a distinction is no longer made between agreements based on CFSP and other agreements. On the basis of Article 216 TFEU: 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.

That this competence stretches beyond the TFEU itself and includes the domain of CFSP is underlined by Article 37 TEU, which provides that ‘the Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter’ (named ‘Specific provisions on the Common

65 The European Convention, Final Report of Working Group III on Legal Personality, CONV 305/02, Brussels, 1 October 2002, para 10.

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Cross-pillar Mixity Foreign and Security Policy’).66 However, as regards treaty-making procedure under Article 218 TFEU, see further below. The end of separate EU and EC agreements may certainly improve the consistency of the Union’s external relations. At the same time, ‘vertical’ consistency may be enhanced by the fact that paragraph 2 of Article 216 states that the agreements shall be binding on both the Institutions and the Member States, underlining their status as an integral part of Union law. By definition, the merger of the Union and the Community and the implied ‘depillarisation’ of the Union put an end to the need for cross-pillar mixed agreements. All post-Lisbon international agreements will be concluded by the European Union. Two questions nevertheless need to be addressed here: a) How will agreements be concluded that relate to both CFSP and other Union issues? b) What is the role of the Member States? With regard to the first question—concerning the need for ‘horizontal mixity’— the new treaty provisions are somewhat ambiguous. Although a combination of legal bases is no longer necessary, the continued separation of CFSP/ESDP from other Union policies and the specific procedures and instruments available in that area, may very well reveal problems similar to the ones we faced before, while perhaps even adding a few new ones. This already becomes clear with a view to the negotiation of international agreements. Whereas in the area of the common commercial policy the Commission takes the lead (Article 207 TFEU), Article 218 provides that (in other cases) the Council shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union’s negotiator or the head of the Union’s negotiating team.

The initiative lies with the Commission, except for agreements which relate ‘exclusively or principally’ to CFSP, in which case the High Representative shall submit a recommendation to the Council (Article 218(3) TFEU). In practice, one may assume that CFSP agreements will be negotiated by the High Representatives or by one of the Special Envoys in his or her team, and that in all other cases the Commission will be the negotiator.67 The fact that the High Representative is at the same time a member of the Commission (Article 17(4) and (5) TEU) will surely make this easier to handle. However, the treaty-making procedures remain distinct. Article 218 TFEU makes clear that the general procedure to conclude international agreements does

66 This Chapter (2) also includes Section 2: Provisions on the Common Security and Defence Policy. 67 Cf also Art 17 TEU, which refers to the fact that ‘With the exception of the common foreign and security policy, and other cases provided for in the Treaties, [the Commission] shall ensure the Union’s external representation.’

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Ramses A Wessel not apply where agreements relate exclusively to CFSP. The main difference concerns the role of the European Parliament which, depending on the type of agreement, has to give its consent or is to be consulted. In the past the diverging procedures formed one of the main reasons for the Council not to opt for cross-pillar agreements (see above). In the new situation, agreements that exclusively deal with CFSP are to be based on the specific procedure, whereas all other agreements follow the general treaty-making procedure. But what if an agreement covers both CFSP and other policies? Obviously, the general procedure (including the role of the Parliament) would be the one to follow, but would this also be acceptable for an agreement which would principally address CFSP or CSDP issues? Time will tell, but it seems fair to conclude that the Union may still be in need of ‘cross-sector’ agreements that are to be based on two separate Council Decisions when agreements cover issues that principally, but not exclusively, relate to CFSP. In that respect, the ECOWAS case mentioned in section II.A. above may be given a different meaning post-Lisbon. In its judgment the Court quite strongly underlined the need to preserve the acquis communautaire as mentioned in current Article 47 TEU. Since Lisbon, the new Article 40 TEU protects not only the acquis communautaire, but also the ‘CFSP acquis’, thereby hinting at a less hierarchical relationship between the two: The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under [the CFSP Chapter]. One may assume that the Court would not come to a similar conclusion under the current legal regime. After all, new Article 40 may give more room for both CFSP and other Union measures to be treated the same.68 The second question concerns the involvement of Member States (‘vertical mixity’). The combination of CFSP and other Union policies in international agreements may alter the role of Member States and their need to become a party. Part of the confusion surrounding the previous relation of Member States to EU international agreement was based on the absence of a clear provision indicating the Union’s legal personality. New Article 47 TEU has put an end to this confusion and it will be more clear that—from an institutional point of view— ratifications at the domestic level are not necessary.69 Ironically, for some

68

Cf Hillion and Wessel, above n 9. Cf also the discussion during the 2002 European Convention on legal personality and the procedure for concluding agreements. The Working Group reported that ‘if the subject-matter of an 69

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Cross-pillar Mixity Member States this may trigger a renewed interest in EU agreements, in the sense that they may wish to become a party whenever they feel that the agreement relates to competences that have not been transferred. In particular, in the absence of an Article 24(5) provision—which did not return after Lisbon—which could be used to point to domestic constitutional requirements, Member States may wish to give their national parliaments a chance to approve an agreement by becoming a party themselves. V.

CONCLUSION

While ‘mixity’ had become the solution in the Community to overcome the division of competences,70 the international agreements concluded in the other former pillars of the European Union were exclusively concluded by the Union. Despite a rather extensive combination of competences, real mixity is scarce. Most second/third pillars combinations could in fact have been based on Article 38 TEU (PJCCM) only, and EU/EC combinations occured in just two instances. This means that both ‘vertical mixity’ and ‘horizontal mixity’ have not gained the popularity one could have expected by looking at the tendency of the EU to take a ‘holistic approach’ to matters. As far as the involvement of Member States is concerned, the expected time-consuming ratification procedures, as well as the perhaps still unclear division between the Union and its Member States, may have played a role. The latter may also have influenced the limited number of EU/EC combinations, but here time could have been saved by allowing the Union to join an agreement in the area of CFSP and PJCCM rather than using the classic EC/Member States combination. Since the entry into force of the Lisbon Treaty, the need for cross-pillar combinations has obviously disappeared. However, we have seen that the distinct procedure for the conclusion of CFSP agreements may very well call for the conclusion of ‘cross-sector’ international agreements. The new Treaty at the same time allows the Court to stimulate cross-sector references71 to prevent the different dimensions of the Union’s external relations from developing in isolation. Ironically, Member States may show a renewed interest in EU agreements,

international agreement is covered partly by the exclusive competence of the Union and partly by the competence of the Member States (traditional ‘mixed agreements’), the Member States must approve the part of the agreement that comes within their national competence in accordance with their respective constitutional requirements. But insofar as Article 24 TEU refers to agreements covered by the Union competence, and once the Union has legal personality and concludes them, national procedures are not justified’. See Report of Working Group III, above n 65, para 30. 70 Although empirical research revealed that the number of mixed agreements adds up to about 10% only, which contradicts the popular view that by now most agreements concluded by the Community are mixed. See N Betz, ‘Mixed Agreements—EC and EU’, paper presented at the GARNET Conference, ’The European Union in International Affairs’, Brussels, 2008. 71 Rather than making these more difficult, as was the case in the ECOWAS judgment.

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Ramses A Wessel and may even ask for mixed agreements to be concluded also in the area of CFSP. With the explicit reference to the Union’s legal personality in the new Treaty, they may become more aware of their own external competences.

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4 Federalism and Foreign Affairs: Mixity as a (Inter)national Phenomenon ROBERT SCHÜTZE*

I. INTRODUCTION: THE FEDERAL PRINCIPLE AND FOREIGN AFFAIRS

T

HE FEDERAL PRINCIPLE stands for duplex regimen—the existence of two governments within a compound polity. It represents an architectural principle which attempts to find ‘unity in diversity’. To protect the autonomy of each government, powers are divided between the centre and the periphery. In federations, there are then two governments that could potentially engage in foreign affairs. Yet, despite the internal division of power, classic international law responded to the emergence of federal States ‘by ignoring their constitutional characteristics and assimilating them to other sovereign States’.1 This blind spot of classic international law resulted from two foundational principles. According to the doctrine of sovereign equality, all subjects of international law were sovereign States. Formal equality meant that any division of powers within a federal State could not affect its external appearance on the international scene. The federal State was—as a State—sovereign under international law. The federal principle would here be reduced to an internal phenomenon that would structure the constitutional relations between the two governments. And as a constitutional principle of domestic law it could have no international import. This followed from the second foundational principle: the doctrine of dualism. Legal dualism was based on the idea that international law and national law form ‘two circles that may touch, but never overlap’.2 Not all federal States would adopt the classic international law solution and distinguish between a federal ‘internal’ and a unitary ‘external’ sphere. The * Thanks go to Alan Dashwood, Jan Klabbers, and especially to the editors, for comments and suggestions. The chapter follows the structure of Joseph Weiler’s contribution entitled ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle’, in D O’Keefe and HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 35. 1 I Bernier, International Legal Aspects of Federalism (London, Longman, 1973) 1. 2 H Triepel, Völkerrecht und Landesrecht (Leipzig, Hirschfeldt, 1899) 111.

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Robert Schütze solutions adopted by federations have varied in time and place. Each of them had to answer a series of constitutional questions. Should the federal Union be constitutionally entitled to conclude treaties that fall into the exclusive competences of its member states? Could the member states of a federation themselves conclude international treaties? What constitutional mechanisms would best preserve unity within the diversity for foreign affairs? Section II of this contribution will offer comparative constitutional perspectives from the United States of America (and Canada) as well as Germany (and Belgium). We shall contrast the American tradition of the ‘closed’ federal State with the European tradition of the ‘open’ federal State.3 In section III we shall analyse the solutions adopted by the European Union. The Union was born with the genetic code of an international organisation. The Treaty of Rome (1957) formed part of international law, although the European Court of Justice was eager to emphasise that the Union ‘constitutes a new legal order of international law’.4 ‘By contrast with ordinary international treaties, the [EU] Treaty has created its own legal system …’5 With time, this new legal order would evolve into a true ‘federation of States’.6 How would the international relations powers be divided between both governmental levels—the European Union and its Member States? The European Union will be identified as an ‘open’ federation. How has this supranational federation eased the tensions between the federal principle and foreign affairs? To coordinate its two levels of government, mixed agreements developed into a common supranational phenomenon. II.

FEDERAL STATES AND FOREIGN AFFAIRS: COMPARATIVE CONSTITUTIONAL PERSPECTIVES

Federal States are sovereign States in international law.7 In the light of this unitary vision, international law has remained ambivalent as regards the international capacity of member states in a federation.8 Modern doctrine holds that 3 The terminology is developed in B Fassbender, Der offene Bundesstaat (Tübingen, Mohr Siebeck, 2006). 4 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 12. 5 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, 593. 6 On this point, see R Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford, Oxford University Press 2009) ch 1. 7 Art 6 of the 1969 Vienna Convention: ‘Every State possesses capacity to conclude treaties.’ 8 The ambiguity emerges from the three separate Reports on the Law of Treaties written, respectively, by H Lauterpacht, G G Fitzmaurice and H Waldock. While the first accepted the autonomous international capacity of member states of a federation ((1953) 5 Yearbook of the International Law Commission (Vol 2), 90, at 138–39), the second categorically denied the duplex regimen for federal States by insisting that its members only acted ‘as agents for the union which, as alone possessing international personality, is necessarily the entity that becomes bound by the treaty and responsible for carrying it out’ ((1958) 10 Yearbook of the International Law Commission (Vol 2), 20 at 24). The third Report followed this ‘unitary’ position, but allowed two exceptions: Member

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Federalism and Foreign Affairs they can enjoy international personality ‘[i]f the federal constitution grants them the right to deal separately with foreign States and such States agree to deal with them’.9 Each federal State can thus have ‘its’ constitutional answer to the relationship between federalism and foreign affairs. Two independent traditions have emerged in modern times. According to the first, the federation is externally ‘closed’. Only the federation enjoys the power to act on the international scene. The federal State here acts ‘like’ a unitary State.10 According to the second tradition, the federation is an open constitutional structure as the member states are allowed to conclude international treaties with third States. The tensions between the unity recommended by international law and the diversity offered by constitutional law will need to be addressed by internal or external legal mechanisms, which coordinate the behaviour of the two governments with third parties. A.

The ‘Closed’ Federation: The United States of America

From the very beginning, foreign affairs were of ‘central’ concern to the American Republic. In war, a united stance had been necessary to win independence from Great Britain. The 1777 Articles of Confederation had not only subjected the power to wage war to central control, they had also placed the treaty-making power under the auspices of the confederal Congress.11 The ‘imperfect’ arrangement under the Articles would inspire the further centralisation of foreign affairs. And while there was no express provision delegating the power to conclude international treaties to the Union as such, the 1787 Constitution granted this power to its President.12 Normatively, the 1787 Constitution strengthened the status of international treaties by providing that ‘all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby’.13 Treaties States must be considered as international subjects if they become members of the United Nations or if they are recognised as possessing international personality of their own ((1962) 14 Yearbook of the International Law Commission (Vol 2), 27 at 36). The ambiguity was not resolved in the 1969 Vienna Convention, which deleted the controversial Art 6(2) from the Final Draft. The provision had originally stated: ‘States members of a federal union may possess a capacity to conclude treaties if such capacity is admitted by the federal constitution and within the limits there laid down.’ 9 I Bernier, n 1 above, at 81. 10 A D McNair, The Law of Treaties (Oxford, Oxford University Press 1961), 37: ‘[T]he United States of America, the Dominion of Canada, and the Commonwealth of Australia may be regarded as belonging to the pure type [of federation], in which the whole treaty-making capacity is vested in the Federal Government; the member States or Provinces possess no such capacity.’ 11 Art IX stated: ‘The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—entering into treaties and alliances …’ 12 Art II, §2, cl 2: ‘He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors’. 13 Art VI, §2.

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Robert Schütze concluded by the Federation would be directly applicable within the states as supreme law.14 These were formidable external powers for the United States. But what was the scope of the United States’ treaty-making power? Would the power follow the federal lines that structured the internal sphere, or was it plenary? And even if it was plenary, would this mean that the states were generally excluded from concluding international agreements? 1.

Constitutional Certainties: The Plenary Scope of the Treaty Power

American constitutionalism grants the Union full treaty-making powers.15 The modern classic in favour of a plenary federal treaty power was given by the Supreme Court in Missouri v Holland.16 The case concerned the protection of migratory birds that were in danger of extinction. The states had been unable individually to limit hunting, and Congress tried to remedy the impasse by adopting the federal Migratory Bird Act (1913). The Act was declared unconstitutional. In an attempt to forestall constitutional troubles, the Senate invoked the idea of an international treaty with Great Britain—acting on behalf of Canada—as an alternative. The Migratory Bird Treaty was duly signed in 1916. In the face of this constitutional trick, it was not surprising that these birds would eventually fly into the offices of the Supreme Court. Could the federation conclude treaties on subject-matters over which it had no internal power? Or was the federal treaty-making power limited by the exclusive competences of the states? Would the treaty power be an independent power or only provide the federal government with an additional instrument to implement its internal competences under the Constitution? The famous answer by the Supreme Court held that the internal division of powers would not structure the external sphere. In the words of Justice Holmes: Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States … It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national

14

Foster v Neilson (1829) 27 US (2 Pet) at 253 (per Chief Justice Marshall) 314. Some consider this to follow from the 1787 Constitution’s original design; cf D M Golove, ‘Treaty-making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power’ (1999–2000) 98 Michigan Law Review 1075, referring, inter alia, to A Hamilton’s The Defence No XXXVI (1796): ‘It was impossible for words more comprehensive to be used than those which grant the power to make treaties. They are such as would naturally be employed to confer a plenipotentiary authority.’ Others consider the idea of full national powers in foreign affairs a modern invention; see CA Bradley, ‘The Treaty Power and American Federalism’ (1998–1999) 97 Michigan Law Review 390, 410: ‘[T]he historical record reveals a fairly consistent understanding that the treaty power was limited either by subject matter, states’ rights, or both.’ 16 State of Missouri v Holland, 252 US 416 (1920). 15

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Federalism and Foreign Affairs action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found … The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment …17

The only limit to the federal treaty power acknowledged was that the federal Government must confine its external powers to situations where a national problem required a national answer.18 Was this a sign that the Court acknowledged inherent limits to the treaty-making power? Should international treaties be confined to inter-national concerns? This reading was supported by subsequent jurisprudence, finding the treaty power to ‘extend to all proper subjects of negotiation between our government and other nations’.19 However, any ‘invisible radiation’ from the Tenth Amendment originally intended withered with modern treaty-making practice. The modern treaty power is a plenary power. The states simply cannot invoke ‘sovereign rights’ over their—internally—exclusive domains to deny the treaty-making power of the Union. But how could a plenary power originate in a federal Constitution based on divided sovereignty? The idea of the ‘exceptional’ character of foreign affairs has been a controversial theme since the foundational period.20 It achieved its purest—and most celebrated—expression in United States v Curtiss-Wright Export Corp.21 The Supreme Court famously drew a categorical distinction between the external and the internal powers of the federal government: The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. … [T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.22

However, the argument that the Union’s external powers are of extraconstitutional origin was ‘historically indefensible’ and thus attracted much academic criticism.23 Even the Supreme Court subsequently rejected the theory: 17 Ibid, 433–34. The Tenth Amendment to the US Constitution reads: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ 18 Ibid, 435: ‘Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power.’ 19 Asakura v City of Seattle, 265 US 332 (1924) at 341 (emphasis added). 20 P J Spiro, ‘Foreign Relations Federalism’ (1999) 70 University of Colorado Law Review 1223. 21 United States v Curtiss-Wright Export Corp, 299 US 304 (1936). 22 Ibid, 315–16, 318. 23 D M Levitan, ‘The Foreign Relations Power: an Analysis of Mr Justice Sutherland’s Theory’ (1945–1946) 55 Yale Law Journal 467, as well as M D Ramsay, ‘The Myth of Extraconstitutional Foreign Affairs Power’ (2000–2001) 42 William and Mary Law Review 379.

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Robert Schütze if plenary in scope, the treaty power was an enumerated power.24 Nonetheless, the picture painted by US constitutionalism is one in which legislative powers are internally divided, while treaty-making powers are externally united.25 Would the plenary treaty-making power also allow the federation to implement every international treaty internally? American constitutionalism is founded on a monistic philosophy towards international treaties. The legal problem of transformation or implementation will thus not arise for directly effective international rules. The latter will be a self-executing part of the law of the land, even for those parts of the treaty that fall within the exclusive competences of the states. And where a federal treaty requires legislative implementation, the necessary internal measures could be constitutionally based on the Necessary and Proper Clause.26

2. Constitutional Ambivalences: The Treaty-Making Powers of the States The 1787 Constitution not only enumerated the external powers of the Union, it equally listed those foreign affairs powers prohibited for the states: No State shall enter into any Treaty, Alliance, or Confederation.27 No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.28

Did these specific prohibitions signal the wish generally to exclude the states from all foreign affairs? This idea surfaced in nineteenth-century American constitutional thought. The United States government was said to be ‘invested with power over all the foreign relations of the country, war, peace, and negotiations

24 Reid v Covert, 354 US 1 (1957) at 18: ‘To the extent that the United States can validly make treaties, the people and the states have delegated their power to the National Government and the Tenth Amendment is no barrier.’ 25 The unitary nature of foreign affairs came under heavy attack when the Truman administration pushed for the adoption of the Universal Declaration of Human Rights and even began negotiations for a binding international human rights treaty (cf Golove, above n 15, at 1274). At that time, states’ rights advocates concentrated their efforts to get the Constitution amended so as to overrule Missouri and to limit the treaty power to those subjects over which the federation enjoyed internal powers. However, the ‘Bricker Amendment’—named after the Senator chiefly associated with it—would ultimately fail. 26 In Missouri, Justice Holmes clarified that the legal foundations of the internal implementing legislation depended solely on the validity of the international treaty: ‘If the treaty is valid there can be no dispute about the validity of the statute under Art 1, § 8, as a necessary and proper means to execute the powers of the Government’ (Missouri, above n 16, at 432). For a critical analysis of this claim, see N Q Rosenkrantz, ‘Executing the Treaty Power’ (2005) 118 Harvard Law Review 1867, 1918. 27 Art I, § 10, cl 1. 28 Ibid, cl 3.

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Federalism and Foreign Affairs and intercourse with other nations; all which are forbidden to the state governments’.29 ‘For local interests the several states of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.’30 How would these judicial pronouncements combine with the wording of the Constitution? Did the Constitution’s text not allow states—with the consent of Congress—to ‘enter into any Agreement or Compact with another State, or with a foreign Power’? From the beginning, there existed an ‘ambiguity of the constitutional language’,31 and the ‘compact clause’ would remain a source of constitutional ambivalence throughout the next 200 years.32 What distinguished ‘treaties’— from which the states were absolutely barred—from ‘agreements’ or ‘compacts’ that would be constitutional if consented to by the federal Union? The textual differentiation between a ‘treaty’ and an ‘agreement or compact’ under the 1787 Constitution reflected a common distinction in eighteenth century international law. The classic text that influenced the drafters of the American Constitution was de Vattel’s The Law of Nations.33 While the distinctions would be effaced by international practice in the nineteenth century,34 what did the Supreme Court make of them over the last 200 years? In Holmes v Jennison,35 Chief Justice Taney redefined ‘treaty’ to ‘mean an instrument written and executed with the formalities customary among nations’. The reference to ‘agreements’ or ‘compacts’, on the other hand, only proved ‘the intention of the framers of the Constitution to use the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between a state and a foreign power’.36 A ‘closed’ federation had been desired by the framers: 29

Knox v Lee & Parker v Davis (Legal Tender Cases), 79 US 457 (1870) 555. Chae Chan Ping v United States, 130 US 581 (1889) 606. 31 D E Engdahl, ‘Characterization of Interstate Arrangements: When a Compact is not a Compact?’ (1965–1966) 64 Michigan Law Review 63, 65 (referring to J Story, Commentaries on the Constitution of the United States (1st edn, 1833) § 1397). 32 This ambivalence is reflected in the slightly schizophrenic position of traditional doctrine. Thus, even the great E S Corwin ‘is able, within the confines of a single volume, to state on one page that “so far as International Law is concerned the states do not exist” and, on another, that the states “retain only a very limited capacity at International Law” ’ (R S Rodgers, ‘The Capacity of States of the Union to Conclude International Agreements: The Background and Some Recent Developments’ (1967) 61 American Journal of International Law 1021, 1022). 33 E de Vattel, The Law of Nations (Chitty Translation, 1883), Book II, § 152–54. Here, a treaty was defined as ‘a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time’. By contrast, ‘[t]he compacts which have temporary matters for their object are called agreements, conventions, and pactions … They are accomplished by one single act, and not by repeated acts.’ Public treaties were viewed as equivalent to ‘laws’—lasting forever or for a considerable time. Agreements or compacts were executive in nature as they settled a specific situation. On the influence of Vattel on the founding fathers, see A C Weinfeld, ‘What did the Framers of the Federal Constitution mean by ′Agreements or Compacts′?’ (1935–1936) 3 University of Chicago Law Review 453, 458. 34 Engdahl, above n 31, at 82. 35 Holmes v Jennison, 39 US 540 (1840). 36 Ibid, 571–72. 30

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Robert Schütze The framers of the Constitution manifestly believed that any intercourse between a state and a foreign nation was dangerous to the Union; that it would open a door of which foreign powers would avail themselves to obtain influence in separate states. . . [O]ur whole foreign intercourse was intended to be committed to the hands of the general government: and nothing shows it more strongly than the treaty-making power, and the power of appointing and receiving ambassadors; both of which are immediately connected with the question before us, and undoubtedly belong exclusively to the federal government. It was one of the main objects of the Constitution to make us, so far as regards our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.37

But how would this solution square with the textual authorisation in Article I, Section 10, Clause 3?38 One way out of the textual dilemma lies in the constitutional role given to Congressional consent.39 Would the consent by Congress transform the state agreement into a federal agreement? The thesis has gained strength with Cuyler v Adams,40 albeit in the context of inter se agreements between sister states.41 The Supreme Court held: [W]here Congress has authorized the states to enter into a cooperative agreement, and where the subject matter of that agreement is an appropriate subject for congressional legislation, the consent of Congress transforms the states’ agreement into federal law under the Compact Clause …42

37

Ibid, 573–76. Above n 28. 39 The literal reading of the compact clause subjects all agreements to consent. However, in Virginia v Tennessee, 148 US 503 (1893), the Supreme Court nuanced this position: ‘There are many matters upon which different states may agree that can in no respect concern the United States.’ The consent requirement applied only to ‘those [agreements] which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control’ (ibid, 518). However, it seems that the suspension of the constitutional requirement of consent is confined to inter se agreements between sister states—to cater for the rise of horizontal cooperation within the United States (cf F Frankfurter and J Landis, ‘The Compact Clause of the Constitution—A Study in Interstate Adjustments’ (1925) 34 Yale Law Journal 685, 729). 40 Cuyler v Adams, 449 US 433 (1981). 41 There had been earlier signs for the proposition that Congressional consent transforms ‘state compacts’ into federal law; cf State of Pa v Wheeling & Belmont Bridge Co, 54 US 518 (1851) 566: ‘This compact, by the sanction of Congress, has become a law of the Union’. However, this line of cases had been overruled by Hinderlider v La Plate River & Cherry Creek Ditch Co, 304 US 92 (1938) 109: ‘The assent of Congress to the compact between Colorado and New Mexico does not make it a “treaty or statute of the United States” …’ Prior to Cuyler v Adams, the ‘law of the Union’ doctrine had been heavily criticised by academics, such as D E Engdahl, ‘Construction of Interstate Compacts: A Questionable Federal Question’ (1965) 51 Virginia Law Review 987, esp 1013 et seq. In the light of these judicial and academic opinions, Cuyler v Adams ‘revolutionized the interpretation of the Compact Clause’ (L M Eichorn, ‘Cuyler v Adams and the Characterization of Compact Law’ (1991) 77 Virginia Law Review 1387). 42 Cuyler v Adams, above n 40, at 440. 38

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Federalism and Foreign Affairs The transformation doctrine has been criticised as ‘a remarkable feat of judicial alchemy’.43 However, it could reconcile the text of Article I, Section 10 with the unitary posture established in constitutional jurisprudence. In concluding an international agreement with the consent of Congress, a member state could be seen as acting as the ‘agent’ or ‘organ’ of the federal State. (An alternative interpretation views such agreements as ‘mixed’ legal phenomena.44 Considering their ‘hybrid status’, as derived from state and federal sources,45 this interpretation would bring ‘agreements or compacts’ between a state and a foreign power close to the idea of mixed agreements. Federal consent would not transform the state agreement into a pure federal agreement, but make the United States an additional contracting partner to the agreement.) We find the same constitutional ambivalences in the foreign affairs federalism of Canada.46 However despite these constitutional uncertainties, ‘[t]he safest conclusion’ still is ‘that the states of the American Union are not presently subjects of international law.’47 This seems to be the dominant view within the international community.

B. The ‘Open’ Federation: The German Federal State in Constitutional History Historically, Germany represents an ‘open’ federation. For much of the nineteenth century, both the German Union and its member states enjoyed the ius bellum and the ius tractatum.48 ‘Unlike the American commonwealths, the states have also retained the position of international persons.’49 The member states are allowed—subject to constitutional limitations—autonomously to conclude international agreements with foreign States. 43

Ibid, Justice Rehnquist dissenting, at 455. Engdahl, n 41 above, at 1039. 45 Eichorn, n 41 above, at 1410. 46 For a discussion of the international capacity of the Canadian Provinces, see G van Ert, ‘The Legal Character of Provincial Agreements with Foreign Governments’ (2001) 42 Les Cahiers de Droit 1093, 1112: ‘No Canadian court has yet answered the question of the capacity of provincial governments to bind their provinces by treaty at international law.’ The dominant Canadian view denies their ability to conclude binding international agreements; cf P Hogg, Constitutional Law of Canada (Scarborough, Carswell, 1997) 306. The Canadian (Con)federation has nonetheless allowed its Provinces to conclude ententes through the technique of ‘framework agreements’ (cf G F FitzGerald, ‘Educational and Cultural Agreements and Ententes: France, Canada, and Quebec—Birth of a New Treaty-making Technique for Federal States?’ (1966) 60 American Journal of International Law 529). However, under a framework agreement the federal State authorises its members to conclude ‘derived’ treaties (R Dehousse, Féderalisme et Relation Internationales (Bruxelles, Bruylant 1991) 258). Under this technique, the Provinces act as mere ‘organs’ or ‘representatives’ of the federal State on the international scene. 47 Bernier, above n 1, at 51. 48 Arts XXXV and XLVI of the 1820 Final Vienna Act. 49 O Gierke, ‘German Constitutional Law in its Relation to the American Constitution’ (1909–10) Harvard Law Review 273, 278. 44

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Robert Schütze The 1871 Imperial Constitution tilted the federal balance in favour of the federal State. The power to declare war became an exclusive power of the Empire.50 Yet the power to conclude international treaties continued to be divided. The Empire and the states were entitled to conclude treaties in those areas over which they enjoyed internal competence. The parallelism between internal and external competences was a cornerstone of the imperial constitutional construct.51 The power of the Empire as well as the power of the states to conclude international treaties was limited by the exclusive competences of the other.52 However, the treaty-making power of the states was also subject to additional limitations. The states could not conclude treaties that would prejudice the security and integrity of the Empire; and, to the extent that the Empire had exhaustively exercised its non-exclusive powers, the member states would lose their power to conclude international treaties.53 This German foreign affairs tradition would be qualified by the Weimar and Bonn Republics. The Weimar Republic—the fruit of a constitutional revolution—would partly ‘break’ with the previous federal tradition.54 Foreign affairs would be further centralised. External diplomatic relations became an exclusive competence of the federal State,55 while the treaty-making powers of the individual states would henceforth require federal consent. This constitutional regime was handed down, after the Second World War, to the Bonn Republic. The central provision for the federal balance in foreign affairs is Article 32 of the German Constitution (GC). It confirms that ‘[r]elations with foreign states shall be conducted by the federation’. But ‘[i]nsofar as the Länder have power to legislate, they may conclude treaties with foreign States with the consent of the federal government’.56 The laconic wording of the provision contained two constitutional ambivalences. First, what was the extent of the federal treaty power—was it plenary or limited? Secondly, what was the nature of federal consent to an international treaty between a member state and a foreign power?

50

A Hänel, Deutsches Staatsrecht (Leipzig, Duncker & Humblot, 1892), 552. P Laband, Das Staatsrecht des Deutschen Reiches (II) (Amsterdam, Scientia, 1964), 168 (translation – RS): ‘The division of treaty-making powers between the Empire and its member states perfectly follows the division of legislative and administrative competences.’ 52 Hänel, above n 50, at 540 (translation – RS): ‘The limits of the Empire’s internal competences are also the limits of its external competences.’ 53 The member states could thus continue to act internationally to the same extent to which they were internally entitled to complement imperial legislation. See Laband, above n 51, at 169 (translation – RS): ‘The member states retain their competences to conclude international treaties as long as the Empire has not exercised its competences; or, where the Empire has not exhaustively regulated the subject-matter, to the extent that they continue to be entitled to complement federal legislation.’ 54 B Fassbender, Der offene Bundesstaat (Tübingen, Mohr Siebeck, 2006) 15. 55 Weimar Constitution, Art 78(1). 56 Art 32(1) and (3) GC. Art 32(2) GC constitutionally guarantees a hearing for member states whose interests are particularly affected by the conclusion of a federal treaty. 51

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Federalism and Foreign Affairs 1. The scope of the federal treaty power: three competing constitutional views Three views emerged in the early years of the Bonn Republic: the ‘Berlin view’, the ‘South German view’ and the ‘North German view’.57 The first adopts the American position: the federal State has plenary power to conclude and implement international treaties. This unitary solution is justified by reference to the sovereign equality of federal States in international law.58 The second view approaches Article 32 from the opposite perspective. Because Germany is a federal State, its federal character will also structure its external relations. The federation is competent to conclude international treaties only to the extent of its internal competences. Where the exclusive competences of the member states begin, the treaty power of the federation ends.59 The third view takes a medium position. It draws from the dualist philosophy adopted by German constitutionalism towards international law. While the federal State enjoys plenary treatymaking power, it cannot implement the treaty in areas falling within the exclusive competences of the member states.60 The federal State must—as a State—be externally sovereign; but as a federation its sovereignty is divided, and this division cannot be undermined by the obligation to implement an international treaty. Which view has been chosen by the German Constitutional Court? While an early judgment tilted against the Berlin view,61 the constitutional competition between the three theories has never been judicially solved.62 Instead, the federation and its member states ‘agreed to disagree’ in a modus vivendi that has structured the treaty power since 1957: the Lindau Accord.63 According to Article 2 of the Accord, the federation will be allowed to conclude three classes of treaties even where some provisions of the international agreement fall within the member states’ exclusive competences. This would be the case where the provisions were ‘typical for such treaties’, or where they formed ‘a minor part of the treaty, whose centre of gravity doubtlessly fell within the competences of the

57 For a general discussion of the three positions, see U Fastenrath, Kompetenzverteilung im Bereich der auswärtigen Gewalt (München, Beck, 1986) ch 9. The labels are named for the member states that originally supported them. 58 Cf E Menzel, ‘Die auswärtige Gewalt’ (1954) 12 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 179. 59 Cf Fassbender, above n 54, at 350 (translation – RS): ‘Within their exclusive legislative competences, only the member states are entitled to conclude international treaties. Within these areas, the federation has not even a completence to transform or implement treaties.’ 60 Cf Fastenrath, above n 57, at 120–40. 61 BverfGE 6, 309 (Reichskonkordat) paras 190, 216–17. 62 Fassbender, above n 54, at 288. 63 Verständigung zwischen der Bundesregierung und den Staatskanzleien der Länder über das Vertragschließungsrecht des Bundes (‘Lindauer Absprache’), 14 November 1957. According to Art 1 of the Accord, the federation and ‘[t]he member states adhere to their respective views as to the power to conclude and implement international treaties that concern the exclusive competences of the member states’. The legal nature of the Lindau Accord has remained controversial.

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Robert Schütze federation’. All other classes of treaties touching on the exclusive competences of the member states were governed by Article 3: International treaties falling within areas of exclusive state competence, which are intended to become binding on the federation or the states, require the consent of the states. The consent shall be submitted before the treaty becomes binding under international law.

Consent thereby meant unanimous consent—every single member state must agree to the federal agreement.64 The constitutional significance of the Lindau Accord has remained controversial. German constitutionalism prohibits the member states to transfer, by means of an agreement with the federation, competences to the federal State.65 The most coherent reading of the Lindau Accord is offered by the ‘North German view’. Accordingly, the federal State concludes the entire agreement under its plenary powers but subjects the exercise of its treaty-making power to the consent of the member states. The member states, in turn, consent to implement the treaty on behalf of the federation by exercising their exclusive legislative competences. The consent of the states under the Lindau Accord is thus reduced to a purely internal dimension; and by denying any external significance of the consent vis-à-vis third States, German constitutionalism opts against the idea of mixed agreements in this context.

2. The Autonomous Treaty-Making Powers of the Member States German constitutionalism traditionally considered its members states as nonsovereign states,66 which could—as States—participate on the international scene. Their limited sovereign powers translated into their limited international capacity. Today, the German constitution limits the treaty-making powers of its member states in three ways. First, the states will be capable of concluding treaties only within the scope of their internal powers. Where the exclusive competences of the federation begin, the treaty-making powers of the member states end. Moreover, the member states will lose their competence to conclude treaties to the extent that the federation has exercised its concurrent powers.67 Secondly, 64 K Stern, ‘Auswärtige Gewalt und Lindauer Abkommen’ in J Ipsen et al (eds), Verfassungsrecht im Wandel (Cologne, Heymanns, 1999) 251, 261. 65 This reflects consolidated jurisprudence by the German Constitutional Court; cf BVerfGE 1, 14 (Südweststaat) at 35 (translation – RS): ‘A member state cannot dispose of its legislative competences. And the federation cannot obtain a legislative competence that is not enumerated in the German Constitution – even with the consent of the member state.’ 66 Hänel, above n 50, at 802–03. 67 B Kempen, ‘Artikel 32’, in H Von Mangoldt, F Klein and C Starck, Das Bonner Grundgesetz (München, Vahlen, 2005) rn 83. What will happen to international treaties concluded before the federation has exercised its concurrent competence? According to Kempen, ibid, rn 43, ‘a previously concluded international agreement of a member state remains immune from subsequent activities of the federation; its international validy remains intact’.

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Federalism and Foreign Affairs unlike the 1871 Imperial Constitution, the member states are deprived of their power to entertain permanent diplomatic relations with foreign States. However, their treaty power implicitly endows them with all ad hoc competences necessary to negotiate an international treaty.68 The third restriction is the requirement of federal consent under Article 32(3) GC. What is the constitutional import of this provision? Will the federal consent turn a state agreement into a federal agreement, or a mixed agreement? The consent requirement was brought into German federalism by the Weimar Constitution. The rationale for this constitutional mechanism was the federal wish to exercise ‘preventive control’ over the foreign affairs of its members.69 In the Weimar era, federal consent was considered a ‘constitutive’ element for the validity of the international treaty. Where a treaty had not received the federal consent, it could not become binding—neither constitutionally, nor internationally.70 Federal consent thus ‘closed off ’ all autonomous international activities by the member states. The Weimar interpretation was not taken over by the Bonn Constitution. In Kehler Hafen,71 the Constitutional Court distanced itself from the ‘constitutive’ reading of federal consent. The Court distinguished the ‘consent’ expressed by a member state towards a third State to conclude the international agreement, from the federal consent under Article 32(3) GC. The latter was no international act; it was a purely internal act and solely addressed to the member state.72 ‘The state treaty, consented to by the federal government, would not be transformed into a federal treaty through this consent’.73 The member state will not act as ‘agent’ of the federal government but will sign the treaty in its own name. It follows that even where the federal State has not consented to the treaty, the latter could be valid under international law. The predominant academic view affirms this position.74

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Ibid, at rn 87. G Anschütz, Die Verfassung des Deutschen Reichs vom 11. August 1919 (Berlin, Stilke, 1930) 363. 70 Ibid. On this issue, see P Seidel, Die Zustimmung der Bundesregierung zu Verträgen der Bundesländer mit auswärtigen Staaten gemäß Art.32 III GG (Leipzig, Duncker & Humblot, 1975), 67 (translation – RS): ‘It was uncontested during the Weimar Republic that federal consent was a requirement for the domestic as well as the international validity of member state agreements. Where federal consent had not been given, the state agreement was invalid under international law – regardless of whether the third State could discover the constitutional irregularity.’ 71 BVerfGE 2, 347 (Kehler Hafen). 72 Ibid, para 88. 73 Ibid, para 92. 74 ‘Modern treaty-making practice requires that subjects of international law − even those with limited capacity − are legally able to express their consent within the scope of their competences. Where it is clear that a member state did not act ‘ultra vires’, the absence of federal consent cannot affect the international validity of its action.’ (Seidel, above n 70, at 84). However, this view is not uncontested. According to some scholars, the federal consent has remained ‘constitutive’ in the Bonn Republic. A foreign State cannot rely on the international validity of a member state treaty that has not received federal consent, because the third State is presumed to have known the constitutional limitations of its international partner (cf Kempen, above n 67, at 91). 69

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Robert Schütze The rejection of the ‘constitutive’ or ‘transformative’ effect of federal consent under Article 32 GC may be rooted in an important difference to Article I, Section 10 of the US Constitution.75 Whereas under the latter federal consent is expressed by the federal legislature, the German Constitution leaves the consent under Article 32(3) to the federal executive. Federal consent is an executive decision and, as such, will not have the same normative force as parliamentary legislation. While international treaties concluded without federal consent cannot be enforced by state law as they violate the federal constitution, German federalism thus continues to recognise the autonomous treaty-making powers of its member states. The lack of federal consent will not affect the international validity of member states’ agreements. And this interpretation of ‘federal’ consent under Article 32(3) as a purely internal matter—again—sidelined the constitutional technique of mixed agreements under this provision. C. Conclusion: Federal States, Foreign Affairs and (the Absence of) Mixed agreements Traditionally, the United States is a ‘closed’ federal order. The Union enjoys plenary treaty-making power and, thanks to its monist position towards international law, these treaties become internal law regardless of the internal division of powers. The power of the states to conclude international ‘agreements’ was textually ambivalent. The 1787 Constitution expressly grants them the power to conclude ‘agreements or compacts’ with foreign States with the consent of Congress. However, subsequent constitutional jurisprudence favoured the ‘unitary’ State model in which the states are a priori excluded as independent actors on the international scene. While there have, occasionally, been international agreements by a state with a foreign power,76 the—perhaps—most harmonious view would regard them not as manifestations of an autonomous treaty power of the states, but as federal agreements concluded by the states as agents of the federal government. In contrast to the American tradition, German constitutional history favours the ‘open’ federal State. Member states are permitted to act autonomously on the international scene. However, ever since the 1871 Imperial Constitution, the states’ foreign affairs powers have been progressively subjected to federal control. Today, German constitutionalism corroborates the international law view ascribing external sovereignty to the federal State. From the ‘North German’ viewpoint, the Lindau Accord, however, subjects the exercise of the federation’s plenary 75

Section II.A.2. above. In 1968, O J Lissitzyn counted four cases in which formal consent had been given to state agreements with a foreign power, three of which concerned agreements between the state of New York and the Government of Canada on the operation of the ‘Peace Bridge’ across the Niagara River (see: ‘Territorial Entities other than Independent States in the Law of Treaties’ (1968-III) 125 Recueil des Cours 1, 35). 76

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Federalism and Foreign Affairs treaty-making power to the internal consent of the member states where the treaty falls within their exclusive competences. The result of Article 3 of the Lindau Accord is thus not a mixed agreement but a pure federal agreement. However, German federalism still recognises the autonomous treaty-making powers of its states. While the exercise of these powers requires federal consent under Article 32(3) of the Bonn Constitution, this is again constructed as an internal coordination mechanism that allows the federation a ‘preventive control’ over the potentially diverse foreign affairs of its members. The German solution—to ‘internalise’ the consent of the member state for a federal agreement and the federal consent for state agreements—made recourse to the external technique of mixed agreements unnecessary. Should we then conclude that federal States have never used mixed agreements as an international mechanism to respect the ‘sovereign powers’ of their member states? This is not the case.77 Belgium provides a splendid (if decaying) constitutional illustration, since the treaty-making powers of the federal State are constitutionally limited. The Belgian Constitution is based on a complete parallelism between the federation’s internal and external competences. The federation cannot conclude treaties over subjects falling within the exclusive competences of the Belgian ‘Communities’ or ‘Regions’.78 To provide for the possibility of international treaties cutting across the mutually exclusive sphere of competences, a Cooperation Agreement between the federation and its members was concluded on the basis of Article 167(4) of the Belgian Constitution.79 Unlike the Lindau Accord, the Cooperation Agreement opts against internal mechanisms and favours the external technique of ‘mixed agreements’. The Cooperation Agreement contains the procedural code for all stages of a mixed agreement. It envisages the principle of ‘co-negotiation’, ‘co-signing’ and ‘co-ratification’.80

77 For the practice of mixed agreements in Switzerland, see Y Lejeune, Le Statut international des collectivités fédérées à la lumière de l’experience Suisse (Paris, LGDJ, 1984). Mixed agreements have also occurred in the international practice of the Soviet Union. The latter had, in 1944, granted its Republics ‘the right to enter into direct relations with foreign States, [and] to conclude agreements’ under Article 18a of the 1936 Soviet Constitution. According to Lissitzyn, above n 76, at 37–39: ‘[a] distinctive feature of the treaty-making activities of the two Soviet Republics is that for the most part they have only become parties to certain multilateral treaties to which the USSR itself is a party. This fact raises the question of the legal meaning and effect of the [joint] participation of a Union Republic in such treaties . . . The fact of parallel participation of the Union and two of its Republics in the same multilateral treaties suggests that the Republics cannot be regarded as acting merely as agents of the Union in entering such treaties. The Soviet Union and the Republics, moreover usually deposit their respective ratifications or accessions at different times.’ 78 P Gautier, ‘La Conclusion des Traités’ (1994) 27 Revue Belge de Droit International 31, 38. 79 Cooperation Agreement between the Federal State and the Communities and Regions on the Arrangements for the Conclusion of Mixed Agreements (8 March 1994). 80 In negotiations of a mixed agreement, ‘[t]he representatives of the diverse authorities concerned negotiate the agreement on an equal basis’ (Art 5). As regards signature, Art 8 states: ‘Mixed treaties are signed by the Foreign Secretary or a representative endowed with full powers and by the Minister designated by the governments of the Regions and/or Communities concerned or by a representative endowed with full powers.’ Ratification is subject to Art 12: ‘As soon as all parliaments concerned have consented, the Foreign Secretary produces the instrument of ratification or accession

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Robert Schütze However, Belgian mixity has not been well received by the international community.81 In the face of international hostility, the Belgian federation has had to start searching for internal constitutional mechanisms.82 In the light of these comparative perspectives from federal States, let us now proceed to an analysis of the European Union. The Union is not a federal State83 but constitutes a ‘federation of States’.84 What are the constitutional principles governing the division of international relations powers within this supranational federation? In what areas could the Union conclude international agreements? And to what extent have the Member States remained independent actors on the international scene? What may explain the predominance of mixed agreements in the foreign affairs federalism of the European Union? These questions will be addressed below. III.

THE EUROPEAN UNION AND FOREIGN AFFAIRS: PURE AND MIXED AGREEMENTS

While the European Union gradually transformed itself into a ‘federation of States’, it was originally conceived as an ordinary international organisation. To understand the texture of its foreign affairs regime, we must understand the structure of international law at the time when the Union was founded. The moment the European Union was conceived, the structure of international law was itself changing from an international law of coexistence to a cooperative international law.85 The establishment of international organisations solidified this transition. Within these organisations, States would prepare international conventions to harmonise their national actions. However, could these international organisations themselves conclude international treaties with foreign States or other international organisations? Classic international law had for Belgium and submits it for Royal Assent.’ For an illustration of a mixed agreement, see 2002 Accord International sur la Meuse par les Gouvernements de la République fédérale d’Allemagne, du Royaume de Belgique, de la Region de Bruxelles-Capitale de Belgique, de la Région flamande de Belgique, de la Région wallonne de Belgique, de la République française, du Grand-duché de Luxembourg et du Royaume des Pays-Bas. 81 J Wouters and L de Smeet, ‘The Position of Federal States and their Federated Entities in International Relations: the Case of Belgium’ in A A Vandamme and J H Reestman (eds), Ambiguity in the Rule of Law (Groningen, Europa Law Publishing 2001) 121. 82 A Alen and P Peeters, ‘Federal Belgium within the International Legal Order: Theory and Practice’ in K Wellens (ed), International Law: Theory and Practice (The Hague: Martinus Nijhoff Publishers 1998). 83 This is universally accepted; see BVerfGE 22, 293 (EWG Verordnungen), 296 (1967) (translation − RS): ‘The [Union] itself is no State, not even a federal State.’ 84 Cf A Dashwood, ‘The Relationship between the Member States and the European Union/ Community’ (2004) 41 Common Market Law Review 355, 356 (‘a federation of sovereign States’); T Börzel and T Risse, Who is afraid of a European Federation? (Jean Monnet Working Paper No 7/00); J Delors, Where is the European Union heading (speech at the US Conference Series in March 2001: http://www.ena.lu) (‘federation of nation States’). 85 W G Friedmann, The Changing Structure of International Law (London, Stevens, 1964).

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Federalism and Foreign Affairs remained hostile to this question. A denial of autonomous external relations for international organisations had been endorsed by the Permanent Court of International Justice in the first half of the twentieth century: ‘Any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country.’86 Thus, ‘[e]ven when the autonomy of the organisation vis-à-vis the member states at the institutional level was conceded … this autonomy for a long time had no external dimension: organizations did not yet conduct “external relations”, and where they did, it was interpreted in terms of agency on behalf of the member states’.87 The rise of the philosophy of cooperative international law generated new answers for international organisations. The capacity of international organisations to engage in treaty making was recognised in 1949 and is today universally accepted.88 Nonetheless, international law has remained ambivalent on the source and scope of the legal capacity of international organisations.89 The external relations of international organisations raised fundamental challenges to the traditional law of treaties. The latter was based on the sovereign equality of its participants and ‘[i]nternational organizations are neither sovereign nor equal’.90 The treaty powers of international organisations would thus be ‘challenged from two sides’: ‘from the outside world, where historically only States have held ‘full powers’, and also from within, where member states are constantly on guard

86 87

Permanent Court of International Law, Series A Nos 20/21 (Serbian and Brazilian Loans) 3, 41. C Brölmann, The Institutional Veil in Public International Law (Oxford, Hart Publishing, 2007)

95. 88 Cf Reparation for Injuries Suffered in the Service of the UN, Advisory Opinion [1949] ICJ 174, at 179: ‘Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is “a super-State” ’, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.’ 89 Would the power to conclude international treaties originate directly from international law, or derive from the will of the Member States of the organisation? The idea that the international organisation enjoys an ‘inherent capacity’—derived not from its member states but directly from international law—has been advocated (cf I Pernice, ‘Völkerrechtliche Verträge Internationaler Organisationen’ (1988) 48 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 229, 233–36). According to J Klabbers, An Introduction to International Institutional Law (Cambridge, Cambridge University Press, 2002), the 1986 Vienna Convention opted for the first solution when its preamble stated that ‘international organisations possess the capacity to conclude treaties which is necessary for the exercise of their functions and the fulfilment of their purposes’. 90 P Reuter, ‘Question of Treaties concluded between States and International Organizations or between two or more International Organizations’ (1975) 27 Yearbook of the International Law Commission (Vol 2), 119 at 120.

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Robert Schütze against both loss of sovereignty and against any consequences the activities of the organization might bring for them’.91 What was the outcome of this dual challenge for the external relations of the European Union? The answer suggested in this contribution is: mixed agreements. While mixity had—as we saw above—remained a dormant national phenomenon, it would become a dominant supranational phenomenon for the European Union. The reasons for the success of mixed agreements in the European legal order lie not only in the originally hostile stance of international law towards the external relations of non-State actors. The internal structure of the European legal order itself favoured the rise of mixity. Lacking plenary treaty-making power, the Union could not develop an internal mechanism to integrate the Member States’ foreign affairs interests, and therefore had to fall back on the external mechanism of mixed agreements. To understand the internal and external reasons for the rise of mixity as a supranational phenomenon, let us first analyse the respective scope of the Union’s and the Member States’ treaty-making powers. Thereafter, we shall analyse the position of mixed agreements in the foreign affairs federalism of the European Union.

A. The Scope of the European Union’s Treaty Powers: The Doctrine of Parallelism The Treaty of Rome did acknowledge the legal personality of the European Community.92 The international capacity of the Community would stretch ‘over the whole field of objectives defined in Part One of the Treaty’.93 What about the Community’s treaty-making powers? The powers of the Community were enumerated powers. Under the 1957 Rome Treaty, the Community’s treaty-making powers were originally confined to international agreements under the

91 N Sybesma-Knol, ‘The New Law of Treaties: The Codification of the Law of Treaties Concluded between States and International Organizations or between Two or More International Organizations’ (1985) Georgia Journal of International and Comparative Law 425, 428. 92 Art 281EC: ‘The Community shall have legal personality.’ 93 Case 22/70 Commission v Council (ERTA) [1971] ECR 263, para 14. Part One of the 1957 Rome Treaty was entitled ‘Principles’ and contained the first eight articles. In ERTA, the Court thus extended the legal position under the ECSC to the EC Treaty (cf Art 6 ECSC: ‘In international relations, the Community shall enjoy the legal capacity it requires to perfom its functions and attain its objectives.’). Despite ERTA’s clarification, the distinction between the Community’s ‘capacity’ and ‘power’ would be clouded in later analysis. For example, Weiler’s 1983 contribution on mixed agreements misleadingly asserted that ‘the Community cannot have capacity where it does not have treaty power’ as ‘[t]his capacity from the Community point of view would seem to depend on the treaty-making power’. See ‘The External Legal Relations of Non-unitary Actors: Mixity and the Federal Principle’ n* above, at 179 and fn 142). This view was, after ERTA, no longer tenable as the decision clarified the Community point of view, namely,that the Community’s capacity was wider than the Community’s treaty-making powers.

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Federalism and Foreign Affairs Common Commercial Policy and Association Agreements with third countries or international organisations.94 This restrictive attribution of treaty-making powers to the Community protected a status quo in which the Member States were to remain the protagonists on the international relations scene. This picture changed dramatically through the doctrine of implied external powers. In the past three decades, the European Court has led—and won—a remarkable campaign to expand the Union’s treaty-making powers.95 The ultimate triumph of parallelism would be celebrated in Opinion 2/91.96 The European Court had been requested to give an opinion on the conclusion of Convention No 170 of the International Labour Organisation. The Court’s brief syllogistic reasoning encapsulates the doctrine of parallelism in pure form: the field covered by the relevant Convention fell within the Union’s internal competence, ‘[c]onsequently’, the adoption of Convention No 170 ‘falls within the [Union’s] area of [external] competence’.97 From the very fact that the Union has an internal power—in this case the competence to adopt social provisions—the Court implied an external power to conclude international treaties for all matters falling within the scope of the Union’s internal competence. The reasoning of the Court reflected the idea of a parallel treaty-making power running alongside internal legislative power. The European Court thereby confirmed a doctrine according to which ‘treaty power is coextensive with its internal domestic powers’, and which thus ‘cuts across all areas of its internal domestic competence’.98 Would international agreements concluded by the Union bind its Member States under international law? If this were the case, all Union agreements would—under international law—be mixed agreements. The answer depends on international law. Are Member States of an international organisation treated like external ‘third States’ in relation to treaties concluded by the organisation? The complete assimilation of Member States to Third States seemed to some ‘manifestly absurd in most cases, both because Member States are usually very much involved in the conclusion of the treaty by the international organization, and because the other party to that treaty legitimately expects performance thereof, in which the Member States are also very much involved’.99

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Cf Arts 113 and 238 of the original EEC Treaty. R Schütze, ‘Parallel External Powers in the European Community: From “Cubist” Perspectives Towards “Naturalist” Constitutional Principles?’ [2004] 23 Yearbook of European Law 225. 96 Opinion 2/91 (ILO Convention No 170) [1993] ECR I–1061. 97 Ibid, paras 15–17 (emphasis added). 98 E Stein, ‘External Relations of the European Community: Structure and Process’ in Collected Courses of the Academy of European Law (The Hague: Martinus Nijhoff, 1990) vol I-1, 115 at 146. 99 W Riphagen, ‘The Second Round of Treaty Law’ in F Capotorti et al (eds), Du droit international au droit de l’integration (Baden-Baden, Nomos, 1987) 565 at 568. 95

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Robert Schütze When the 1986 Vienna Convention on the Law of Treaties for international organisations was drafted, its Special Reporter also thought it desirable to adopt a less formalistic ‘third party’ regime − one that would facilitate the creation of direct international rights for Member States. The association of the Member States with the obligations of the international organisation would secure the performance of these obligations in situations that involved the resources of its members.100 The final draft adopted Article 36bis.101 The provision tried to strike a balance between the independent legal personality of an international organisation and the special status of its members. It was ultimately deleted, and the final text of the 1986 Convention reverted to the strict application of the pacta tertiies principle.102 The Convention thus codified the classic relativity of treaties: Member States will not be internationally bound by a treaty of the international organisation. What is the European legal order’s response to this question? It can be found in Article 216 (2) TFEU, according to which Union agreements ‘are binding on the institutions of the Union and on Member States’. Would this make the Member States a ‘partial treaty party’ to an international treaty concluded by the Union?103 The answer must be in the negative. The reference to the Union institutions in addition to the Member States pointed, from the very beginning, to the idea that the provision was designed to have solely internal effects in the European legal order. The provision expressed the constitutional obsolescence of a transformative act before international obligations become binding in the European legal order. Under this monist philosophy, Member States are only under a European obligation to help in the fulfilment of international treaties concluded by the Union.104 A third State cannot bring a case under international law against a

100 On these international legal issues, see the excellent monograph by C Brölmann, above n 87, esp ch 10. 101 Art 36bis provided: ‘Obligations and rights arise for States members of an international organisation from the provisions of a treaty to which that organisation is a party when the parties to the treaty intend those provisions to be the means of establishing such obligations and according such rights and have defined their conditions and effects in the treaty or have otherwise agreed thereon, and if: (a) the States members of the organisation, by virtue of the constituent instrument of that organisation or otherwise, have unanimously agreed to be bound by the said provision of the treaty; and (b) the assent of the States members of the organisation to be bound by the relevant provision of the treaty has been duly brought to the knowledge of the negotiating States and the negotiating organisations.’ The only reminder of the provision in the 1986 Convention is Art 74(3): ‘The provisions of the present Convention shall not prejudge any question that may arise in regard to the establishment of obligations and rights for States members of an international organisation under a treaty to which that organisation is a party.’ 102 Cf Art 35 of the 1986 Convention. 103 On this idea, see H Krück, Völkerrechtliche Verträge im Recht der Europäischen Gemeinschaften (Berlin, Springer, 1977) 129. 104 Case C-13/00 Commission v Ireland [2002] ECR 2943, para 15: ‘… in ensuring respect for commitments arising from an agreement concluded by the [Union] institutions, the Member States fulfil, within the [European] system, an obligation in relation to the [Union], which has assumed responsibility for the due performance of the agreement’.

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Federalism and Foreign Affairs Member State for the non-fulfilment of the Union’s international obligations. Union agreements were no ‘hidden’ mixed agreements. However, the EU’s monistic stance ensured that its foreign affairs powers could be enforced inside the European legal order. Where international agreements were directly effective, they could be automatically enforced by the executive and judicial branches of the Union and the Member States. International agreements would not just be binding ‘on’ the Member States, but also ‘in’ the Member States.105 Even where an agreement lacked direct effect, the discrepancy between the treaty-making and the treaty-implementing power would not arise for the Union’s implied treaty powers. As the latter ran in parallel to an internal competences, the European Union would always be constitutionally able to enforce pure Union agreements through the adoption of internal implementing legislation.

B. The Scope of the Member States’ Treaty Powers: Constitutional and Legislative Pre-emption From an international law perspective, the Member States of the European Union enjoy full treaty-making powers as equal and sovereign international subjects. This perspective is not shared by the European legal order. Here, the Member States enjoy only limited treaty-making powers. The limits are set in two ways. First, the EU Treaty may grant the Union a constitutionally exclusive competence.106 Within these exclusive areas, the Member States will be prevented from acting—internally as well as externally. However, the great majority of the Union’s powers are non-exclusive powers. This means that the Member States remain entitled to act internationally, unless the Union has adopted internal rules that pre-empt them. The second limit on the treaty-making powers of the Member States has been defined by three constitutional principles that structure Europe’s foreign affairs federalism: the ‘ERTA Principle’, the ‘Opinion 1/76 Principle’, and the ‘WTO Principle’. The Member States will be deprived of their treaty-making power to the extent that its exercise affects internal European law. This first limit became famous as the ‘ERTA Principle’. It states that each time the Union ‘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’.107 However, the original ERTA ruling left in suspense the question of when the exercise of external powers by the 105 On the vertical and horizontal direct effects of international agreements in the European legal order, see R Schütze, ‘The Morphology of Legislative Power in the European Community: Legal Instruments and the Federal Division of Powers’ [2006] 25 Yearbook of European Law 91, 131 et seq. 106 R Schütze, ‘Dual Federalism Constitutionalised: The Emergence of Exclusive Competences in the EC Legal Order’ (2007) 32 ELRev 3. 107 Case 22/70 ERTA, above n 93, para 18 (emphasis added).

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Robert Schütze Member States would be incompatible with European law. This was the central ambivalence of the ERTA doctrine.108 Did ERTA imply automatic field preemption in the external sphere over all matters falling into the scope of the internal European law—regardless of the degree of internal harmonisation achieved? It was up to subsequent jurisprudence to clarify the extent to which the Member States would lose their treaty-making power. In Opinion 1/94,109 the Court voted against the automatic field pre-emption of the Member States. Thus, not every exercise of the Union’s internal powers would render the parallel external power exclusive. When, then, would an international treaty ‘affect’ European legislation? According to Opinion 1/2003,110 the principle behind ERTA exclusivity was to prevent an international agreement concluded by the Member States undermining ‘the uniform and consistent application of the [European] rules and the proper functioning of the system which they establish’.111 The Opinion thereby adopted a restrictive reading of the ERTA doctrine. A finding in favour of exclusive Union powers required ‘a comprehensive and detailed analysis’ of the relationship between internal legislation and the international treaty. The analysis must prove that ‘it is clear that the conclusion of such an agreement is capable of affecting the [European] rules’.112 The second constitutional principle is the Opinion 1/76 doctrine. In its recent jurisprudence, the Court (re)constructed Opinion 1/76 as an independent source of exclusivity beside the ERTA doctrine.113 The Court wished to extend the exclusionary effect to situations where the ‘external powers may be exercised, and thus become exclusive, without any internal legislation having first been adopted ’.114 An external Union power could thus become exclusive on exercising that very power through the conclusion of an international agreement. While acknowledging an ‘anticipated ERTA effect’,115 the Court insisted that only the future exercise of the external power would render it exclusive. The exclusivity is neither purely legislative, since the Member States are prevented from autonomous action at a time when no European secondary law exists; nor purely constitutional, for it is through the subsequent exercise that the competence becomes exclusive. The Court positioned the Opinion 1/7 doctrine somewhere

108 This ambivalence was translated into a series of excellent questions by E Stein, above n 98, at 157: ‘If the Council, in the exercise of its internal competence, adopts a regulation (as it did in the ERTA case) are the Member States precluded from concluding international agreements on the entire subject which is thus “pre-empted”—and if so, how does one define the “subject”, or “the field” that is so pre-empted? Or, and this is an alternative interpretation, are the Member States only forbidden to act intentionally in violation of the specific [Union] rules set forth in the regulation?’ 109 Opinion 1/94 (WTO) [1994] ECR I-5267, para 96. 110 Opinion 1/2003 (Lugano) [2006] ECR I-1145. 111 Ibid, para 133. 112 Ibid, para 124. 113 On the transformation of the Opinion 1/76 ratio decidendi, see Schütze, above n 95, at 250 et seq. 114 Opinion 1/94 (WTO), above n 109, para 85 (emphasis added). 115 I am grateful to A Dashwood for this attractive phrase.

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Federalism and Foreign Affairs between both forms of exclusivity.116 The scope of this hybrid exclusivity is, however, very restricted. It is confined to ‘the situation where the conclusion of an international agreement is necessary in order to achieve Treaty objectives which cannot be attained by the adoption of autonomous rules.’117 The Union will enjoy an exclusive external power only where the achievement of an internal objective was ‘inextricably linked’ with the external sphere.118 Exclusivity will be restricted to a ‘situation in which internal competence could effectively be exercised only at the same time as external competence’.119 Lastly, in Opinion 1/94 the Court added a third constitutional principle limiting the treaty-making powers of the Member States: the ‘WTO Principle’.120 It states that ‘ [w]henever the [Union] has included in its internal legislative acts provisions relating to the treatment of nationals of non-member countries or expressly conferred on the institutions powers to negotiate with non-member countries, it acquires exclusive external competence in the spheres covered by those acts’.121 The doctrine is the potentially most dangerous limitation on the Member States’ treaty-making power. The European constitutional principles discussed above will deprive the Member States of their treaty-making powers. In these situations, only the European Union is entitled to act externally. From the perspective of European law, then, neither the Union nor its Member States enjoy plenary treaty-making power. This constitutional absence would favour the emergence of mixity as a dominant supranational phenomenon.

C. Mixed Agreements and Foreign Affairs: Europe’s Federal Constitutional Convention Who can conclude international agreements that do not entirely fall into the competence sphere of either the European Union or the Member States? What constitutional mechanisms would the European legal order develop to coordinate the external relations of its two governmental levels? The European answer to both questions has been mixed agreements—that is, agreements to which both 116

Schütze, above n 106, at 15. Opinion 2/92 (OECD) [1996] ECR I-1759, s V, para 4. 118 Case 476/98 Commission v Germany (Open Skies ) [2002] ECR I-9855, at para 87. 119 Ibid, para 88 (emphasis added). 120 The constitutional relation between the ‘WTO Principle’ and the ‘ERTA Principle’ is still unclear. The Lisbon Treaty conceives the two principles as independent grounds of exclusivity; cf Art 3(2) TFEU: ‘The European 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 European Union or is necessary to enable the European Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.’ However, the ‘WTO Principle’ may be seen as a specific expression of ERTA pre-emption; cf R Schütze, above n 6, ch 6, section I, 2a. Opinion 1/2003, above n 110, may be seen as a step in this direction. 121 Opinion 1/94 (WTO), above n 109, para 95 (emphasis added). 117

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Robert Schütze the EU and some or all of its Member States appear as contracting parties.122 Mixity had originally been designed for a specific sector of Community law.123 However, it soon spread to become the hallmark of the European Union’s foreign affairs federalism.124 In the light of the preceding sections, four points should be borne in mind to locate the constitutional position of mixity in the European legal order. First, unlike American and German constitutionalism, European constitutional theory has not granted the Union a plenary treaty-making power. However, like American constitutionalism, the European legal order has adopted a monist approach: international agreements—validly—concluded by the European Union will be binding ‘on’ and ‘in’ the Member States. This means—secondly—that unlike German federalism, there is no constitutional cleavage between treaty-making and treaty-implementing powers. Thirdly, like the German federation, the European Union is an ‘open’ federation: the Union and its Member States can autonomously act on the international scene. European law recognises the Member States as independent international subjects, which do not—under European law—enjoy plenary treaty-making powers. Fourthly, unlike German federalism, there is no internal constitutional control mechanism that would allow the European Union to veto international agreements of the Member States that might threaten the federal interest.125 The growth and success of mixed agreements in Europe’s foreign affairs federalism may thus be accounted for by a number of reasons—internal and 122 Mixity extends to all phases of an international agreement and may thus add a pluralist dimension to the negotiation, conclusion and implementation stage. However, the Court has emphasised a ‘duty of cooperation’ between the Union and the Member States, which follows ‘from the requirement of unity in the international representation of the [Union]’; cf Opinion 1/94 (WTO), above n 109, para 108. 123 Art 102, Euratom Treaty: ‘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.’ 124 The first mixed agreement concluded by the EEC was the 1961 Agreement establishing an association between the European Economic Community and Greece, [1963] OJ 26/294. An early survey of mixed agreements up to 1982 can be found in J J Feenstra, ‘A Survey of the Mixed Agreements and their Participation Clauses’ in D O’Keeffe and H G Schermers (eds), Mixed Agreements (The Hague, Kluwer, 1983) 207. For a more up-to-date registry, see J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer, 2001) 252–77, listing 154 mixed agreements concluded between 1961 and 2000. Quantitatively, mixed agreements represent only about one-fifth of all agreements concluded by the Community (cf A von Bogdandy, F Arndt and J Bast, ‘Legal Instruments in European Union Law and their Reform’ [2004] 23 Yearbook of European Law 91, 107). 125 Nonetheless, the European Court has in the past developed a number of weaker internal mechanisms that control the international powers of the Member States; 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: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 125. On the (ambivalent) relationship between the international powers of the Member States and European law, see R Schütze, ‘EC Law and International Agreements of the Member States—An Ambivalent Relationship?’ (2006–7) 9 Cambridge Yearbook of European Legal Studies 387.

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Federalism and Foreign Affairs external to the European legal order. First, mixed agreements would allow the Union and its Member States to unite their competences into a plenipotentiary whole that matched the external sovereignty of a third State. The division of treaty-making powers between them could then be reduced to a ‘domestic’ European affair.126 Secondly, the uncertainty surrounding the nature and extent of the treaty-making powers of non-State actors under international law originally provided an additional reason.127 As long as it remained uncertain whether or how the Union could fulfil its international obligations, mixed agreements would provide judicial security for third States by involving the Member States as international ‘guarantors’ of the Union obligation.128 The constitutional developments within the European legal order in the last three decades have weakened both rationales. Not only have the external powers of the Union been significantly expanded through the development of the doctrine of parallelism,129 its internal powers have been sharpened to guarantee the enforcement of Union agreements within the European legal order.130 Today, the dominant—third— reason behind mixed agreements appears to be of a purely political nature: Member States insist on participating in their own name so as to remain ‘visible’ on the international scene.131 Even for matters that fall squarely within the Union’s competence, the Member States dislike being (en)closed behind a supranational veil. How has the European Union reacted to the political demand for mixed agreements? Shared competences do not constitutionally require mixed action.132 Not every international agreement falling within an area of shared competence must therefore be mixed. Within shared competences, the Union or the Member States can both act autonomously and conclude independent agreements; or, if

126 ‘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 States have no need to intervene’ (Ruling 1/78 (IAEA Convention) [1978] ECR 2151, para 35). However, third States or international organisations may insist on a declaration of competence (cf UN Convention on the Law of the Sea, Annex XI). 127 P Pescatore, ‘Les relations extérieures des communautés européennes: contribution à la doctrine de la personnalité des organisations internationales’ (1961) 103 Recueil des Cours 1, 105. 128 M J Dolmans, Problems of Mixed Agreements: Division of Powers within the EEC and the Rights of Third States (The Hague, Asser Instituut, 1985) 95, 129 Section III.A above. 130 Schütze, above n 105. 131 C D Ehlermann, ‘Mixed Agreements: A List of Problems’ in O’Keeffe and Schermers, above n 124, at 6: ‘Member States wish to continue to appear as contracting parties in order to remain visible and identifiable actors on the international scene. Individual participation is therefore seen as a way of defending and enhancing the prestige and influence of individual Member States.’ 132 Schütze, above n 95, at 265 et seq. There is enormous terminological confusion as to what are ‘shared powers’ in the external relations of the European Union. On the various types of competences, esp the difference between ‘shared’ and ‘joint’ competence, in the Community legal order, see R Schütze, ‘The European Community’s Federal Order of Competences: A Retrospective Analysis’ in M Dougan and S Currie (eds), Fifty Years of the European Treaties—Looking back and Thinking Forward (Oxford, Hart Publishing, 2009) 63, esp 85–87.

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Robert Schütze they so wish, they may act jointly.133 It originally seemed that the European Court would demand specific constitutional justification for mixed external action in place of a pure Union agreement.134 However, in the last three decades, the Court of Justice has given its judicial blessing to the uncontrolled use of mixed agreement in areas of shared competences.135 The widespread use of joint external action evinces a remarkable tolerance towards the Member States’ international powers, as the practice of mixed agreements entails a significant anti-Union consequence. According to a European ‘constitutional convention’, the Council may conclude mixed agreements on behalf of the Union only once all the Member States have themselves ratified the agreement in accordance with their constitutional traditions.136 The convention thus boils down to requiring ‘unanimous’ consent before the Union can exercise its competence. The arrangement thus prolongs the (in)famous Luxembourg Accord in the external sphere. The constitutionally uncontrolled use of mixed agreements under the Union’s shared powers has, unsurprisingly, been criticised as ‘a way of whittling down systematically the personality and capacity of the [Union] as a representative of the collective interest’.137 Others have celebrated the practice of mixed agreements

133 Cf Case 316/91 Parliament v Council [1994] ECR I-625, para 26. In this sense, see also R Holdgaard, External Relations of the European Community: Legal Reasoning and Legal Discourses (The Hague, Kluwer, 2008) 152: ‘In situations where the [Union] has non-exclusive competence with respect to the whole subject of an agreement, the political actors have a genuine choice as to whether the Member States, the [Union] or both should negotiate and conclude (and implement) the agreement.’ 134 Opinion 1/76 (Laying-up Fund) [1977] ECR 741, paras 6–8. The Opinion recognised that ‘the danger of mixed agreements (and their attraction for Member States) lies in their tendency to over-emphasise at the expense of the [Union] the participation of the Member States as traditional international legal persons’ (M Cremona, ‘The Doctrine of Exclusivity and the Position of Mixed Agreements in the External Relations of the European Community’ [1982] 2 Oxford Journal of Legal Studies 393, 414). 135 In the last 30 years, these ‘facultative’ mixed agreements—ie agreements in which the Union has competence to conclude the entire agreement—have become the prominent category of mixed agreements: ‘Indeed, there is no decision from the Court under the EC Treaty where the explicit justification for recourse to the mixed procedure would have been the limited scope of Community competence – commonly regarded as the principal legal explanation for the practice of mixed agreements.’ (Cf. J Heliskoski, n 124 above at 68). It is consequently misleading to claim that ‘[t]he essence of a mixed agreement is that, to a greater or lesser extent, some of its provisions fall within the competence of the [Union], while others fall within the competence of the Member States’ (I MacLeod, I D Hendry and S Hyett, The External Relations of the European Communities (Oxford, Oxford University Press 1996) 145). 136 The inspiration for this constitutional convention appears to be Art 102 of the Euratom Treaty (above n 123) On the convention, see also P Eeckhout, External Relations of the European Union (Oxford, Oxford University Press, 2004) 218–19. 137 P Pescatore, ‘Opinion 1/94 on “Conclusion” of the WTO Agreement: Is there an Escape from a Programmed Disaster’ (1999) 36 CMLRev 387 at fn 6. The criticism of mixed agreements has been rich from the very beginning; see A Barav, ‘General Discussion’ in C W A Timmermans and E L M Völker (eds), Division of powers between the European Communities and their Member States in the Field of External Relations (Deventer, Kluwer, 1981) 144: ‘[M]ixed agreements are probably a necessary evil, part of the integration process, but nobody would like to see any more of them.’; and C D Ehlermann, above n 131, at 2: ‘Apparently an easy and handy formula, [mixity] creates problems

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Federalism and Foreign Affairs as ‘a near unique contribution to true federalism’.138 The truth lies in between. In the absence of a holder of plenary treaty-making power within Europe, ‘[m]ixity, alongside pure [Union] agreements and pure Member State agreements, establishes an additional option for the conduct of external legal relations by nonunitary entities’.139 Europe may therefore not wish to abandon mixity in the external sphere altogether. However, facultative mixed agreements should be avoided as ‘an unnecessary burden making the EU a more cumbersome and inflexible international actor’.140 Mixity should be confined to situations where solid constitutional reasons necessitate the dédoublement of the Member States on the international scene.141 With the passing of dual federalism, such a constitutional reason may no longer lie in the presence of exclusive Member State competences over a part of the international agreement. Yet with the changing structure of European law, another constitutional reason might still require mixed external action: the principle of subsidiarity. Mixity would here become the external facet of the European Union’s internal cooperative federalism.

and risks for all sides: the [Union], its Member States and the other contracting parties.’ For a more recent criticism from the hand of an international lawyer, see J Klabbers, An Introduction to International Institutional Law (Cambridge, Cambridge University Press, 2002) 294: ‘[Mixed agreements] rupture the unity, or would-be-unity, of an organization’s external actions, and even place question marks around the very idea of unity to begin with. In particular where mixity is inspired not so much by legal necessity but rather by demands arising from concerns relating to the legitimacy of agreements among those who have to implement them (ie the member-states), one may well regard them as a sign of defeatism on the part of the organization concerned: it sends the message that its ambitions cannot be realized without the separate involvement of its member-states.’ 138 JHH Weiler, ‘The External Relations of Non-unitary Actors: Mixity and the Federal Principle’ in The Constitution of Europe (Cambridge, Cambridge University Press, 1999) at 130. Professor Weiler’s original 1983 position is much harder to identify. In addition to celebrating mixity as ‘the greatest departure of the [Union] from federal-state practice’ (ibid, 176), his original contribution also praised ‘non-mixed agreements’ for their ‘ideal federal balance’ (ibid, 175) and finally suggested the idea of a ‘vertical mixed agreement’ as the most ideal construction (ibid, 178). For a positive evaluation of mixity, see also A Dashwood, ‘Why Continue to have Mixed Agreements at All?’ in J H J Bourgeois et al (eds), La Communauté Européenne et les accords mixtes (Bruxelles, Presses interuniversitaires européennes, 1997) 93, 98: ‘We have to live with mixed agreements, and should even be grateful for them.’ 139 Weiler, above n 138, at 186. 140 Eeckhout, above n 136, at 224. Eeckhout goes so far as to state that mixity for an agreement over whose subject-matter the Union enjoys full competence ‘could be considered to violate [Article 4(3) TEV]: by participating in the agreement the Member States may be making it more difficult and cumbersome for the Union to achieve its objectives’ (ibid, at 194–95). 141 It is important to remember that the decision to ratify an international agreement concluded by the Union was principally left to the Member States acting through the Council. The role of the European Parliament was—as a rule—limited to mere consultation (Art 300(2) and (3) EC). However, according to Article 218 (6) (a) TFEU, the Parliament will now have to give its consent in certain cases.

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Robert Schütze IV.

CONCLUSION: MIXED AGREEMENTS AS A (INTER)NATIONAL PHENOMENON

International law still suffers from its nineteenth century obsession with sovereign subjects.142 It has remained ambivalent towards the treaty powers of member states within federations. Today, it accepts the possibility of their international capacity, but leaves the degree of treaty powers to the internal constitution of the federal State. Each federal State may thus choose ‘its’ foreign affairs structure. Some federations are ‘closed’ as they adopt the ‘unitary’ solution. The federal State alone enjoys all treaty-making powers. This has historically been the case in the United States of America (and Canada), and has been said to be ‘ultimately premised not in a rule of constitutional law but in a rule of international law’.143 Other federations are ‘open’ as they chose the ‘federal’ solution in foreign affairs. The treaty-making power is divided between two governments. This is the case in Germany (and Belgium). To coordinate their foreign affairs activities on the international scene, open federations may follow one of two constitutional options. First, they can adopt internal cooperation mechanisms, as in Germany, whereby the exercise of treaty power by one government requires the consent of the other. The second technique recognises the ‘sovereign powers’ of the members at the international level through the conclusion of mixed agreements. The disadvantage of the external constitutional option is that it depends on the goodwill of the international community to deal with two governmental levels instead of one. The European Union is not a federal State. It was born as an international organisation. Originally, international law betrayed an impressive ambivalence towards the treaty powers of international organisations. It was therefore in the hands of the Union to fashion its external relations federalism. While the Union has significantly increased its treaty-making powers in the past decades, it enjoys no plenary power. In contrast to the international law perspective, its Member States enjoy only limited treaty-making powers under European law. Their international powers are limited by the exclusive powers of the Union and may be

142

M Koskenniemi, From Apology to Utopia (Cambridge, Cambridge University Press, 2005) esp

ch 4. 143 P J Spiro, ‘Foreign Affairs Federalism’ (1999) 70 University of Colorado Review 1233, 1260. The author explains: ‘Under the foundational doctrine of state responsibility, nations alone have enjoyed legal personality under international law. The doctrine aspired to a world in which nations both controlled and were accountable for the conduct of all entities within their jurisdiction, private and public. It has thus been well established under international law that a nation is responsible for the misdeeds of its political subdivisions, a rule that has taken no cognizance of internal allocations of authority. It was the doctrine of state responsibility that dictated our own rule of constitutional law, for it was this rule of international law that gave other nations not merely the capacity but the right to take action against or demand redress from the United States for offence caused by state-level action. This international legal context gave the nation the same incentive to control its subdivisions as domestic law gives the parent to control her children.’

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Federalism and Foreign Affairs pre-empted through European legislation. Since both the Union and its Member States operate on the international scene, the European Union can be described as an ‘open’ federal Union. Unlike Germany, Europe could not settle on internal constitutional mechanisms to coordinate the external affairs of its two governmental levels. The absence of a competence holder with plenary treaty-making powers had ruled this out. Instead, the European Union had to cultivate the international technique of mixed agreements. Mixed agreements would provide an external mechanism to coordinate or combine the treaty-making powers of the Union and its Member States. Internal constitutional and external international reasons explain the success of mixity as a supranational phenomenon. However, mixity has also given rise to constitutional and international problems. Constitutionally, the internal convention of having all Member States ratify the mixed agreement prior to Union conclusion perpetuates a decisional intergovernmentalism reminiscent of the Luxembourg Accord. The implementation of mixed agreements within the European legal order has also been marred with constitutional peculiarities.144 Internationally, mixed agreements have equally raised many complex legal problems.145 These constitutional and international problems have led to two proposals to abandon mixed agreements altogether. The first suggestion addresses the federal dimension by separating the European and the national parts of the agreement.146 The proposal was rejected at Nice.147 The second suggestion advocates the development of a ‘vertical mixed agreement’.148 In proposing a plenary treaty-making power for the Union, this proposal comes close to the German constitutional modus vivendi under the Lindau Accord. This contribution, by contrast, advocates a third solution: mixity should stay, but be limited to situations in which internal constitutional reasons necessitate the dual conclusion of an agreement by the European Union and its Member States. In these

144 See chapters fourteen and fifteen by Ivo van der Steen and Ivan Smyth respectively in this volume. 145 See chapter seventeen by Peter Olson in this volume. 146 Pescatore, above n 127, at 106; and J J Costonis, ‘The Treaty-making Power of the European Economic Community: The Perspectives of a Decade’ (1967–8) 5 CMLRev 421, 450. 147 The idea was broached at the 2000 Intergovernmental Conference on Institutional Reform (Presidency Report to the Feira European Council, CONFER 4750/00). The Presidency had proposed a new Art 300(8) EC, which stated: ‘Where it is planned to conclude an agreement in which only some provisions come within the Community’s powers, those provisions shall form a separate agreement, concluded on the basis of the relevant provisions of this Treaty.’ The provision did not gain the approval of the ‘Masters of the Treaties’ and, consequently, did not find its way into the European Treaties. 148 This de lege ferenda proposal was made by Weiler, above n 138, at 187. The name ‘vertical mixed agreement’ is misleading as this is not a mixed agreement. It is supposed to be a pure Union agreement, whose implementation would not expand the Union’s internal competences and not automatically field pre-empt the Member States’ treaty-making power within the area. Weiler’s proposal came at the time when it was still believed that the division of treaty-making powers in the external sphere was the principal reason for mixed action, and when the belief that any internal Union action would lead to the total exclusion of the Member States in the external sphere was still prevalent.

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Robert Schütze situations mixity represents the best institutional manifestation of foreign affairs federalism, since it acknowledges—on the international scene—the heart of the federal principle: the idea of duplex regimen.

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5 Mixity and Coherence in EU External Relations: The Significance of the ‘Duty of Cooperation’ CHRISTOPHE HILLION*

I.

INTRODUCTION

M

IXED AGREEMENTS TYPIFY the polyphonic nature of the Union’s external action, the audibility of which ultimately depends on the degree of harmony achieved among its key players.1 While the Treaty contribution to such harmony has been rather limited,2 the European Court of Justice has done its share to limit cacophony and, further, to cultivate a sense of coordination.3 Thus, alongside its traditional competence-focused case law,4 the Court has established and progressively articulated a cooperation jurisprudence revolving around what is usually referred to as the duty of cooperation, whereby

* Many thanks to Joni Heliskoski, Rass Holdgaard, Panos Koutrakos and Anne Myrjord for all their helpful suggestions. All mistakes are mine. 1 Pre-Lisbon: the EC, the EU (qua CFSP and PJCCM) and its Member States, and post-Lisbon: the EU acting on the basis of the TFEU, the Union qua CFSP, and Member States. 2 In this sense, see J H H Weiler, ‘The transformation of Europe’ (1991) 100 Yale Law Journal 2403; C Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed), Developments in EU External Relations Law, Collected Courses of the Academy of European Law (Oxford, Oxford University Press, 2008) 10; Editorial Comments ‘Mind the gap’ (2008) 45 CMLRev 317. 3 Institutional practice has also developed in the form of practical arrangements to foster coordination see the respective chapters of, eg, Joni Heliskoski, Ivan Smyth, and Ivo van der Steen in this volume. 4 See Case 22/70 Commission v Council (AETR) [1971] ECR 263; Opinion 1/75 Understanding on a local cost standard [1975] ECR 1355; Opinion 1/76 Agreement establishing a European laying-up fund for inland waterway vessels [1977] ECR 741; further 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.

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Christophe Hillion Member States and EU institutions are exhorted to orchestrate their joint performance on the international scene.5 The present chapter looks back at that case law to unpack the duty of cooperation.6 It establishes the latter’s constitutional roots (section II), decrypts its legal effects (section III), and explores its still undefined scope of application (section IV). It will, it is hoped, become clear to the reader that, with the assistance of the Court, the duty of cooperation has become an increasingly significant—and indeed constraining—principle governing the law of mixed agreements.7 This development arguably illustrates a growing judicial acceptance of (or resignation to) the phenomenon of mixity, as well as the plurality that it encapsulates and which has been intrinsic to the functioning of the EU system of external relations,8 also since the entry into force of the Treaty of Lisbon.9

II.

THE CONSTITUTIONAL FOUNDATION OF THE DUTY OF COOPERATION

The duty of cooperation was first flagged up by the Court of Justice in the context of the Euratom Treaty,10 which, in contrast to the EEC Treaty,11 explicitly foresees that the European Atomic Energy Community and its Member States may jointly conclude external agreements.12 Relying on Article 192 EAEC, which, akin to former Article 10 EC (replaced, in substance, by Article 4(3) TEU) encapsulates 5 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 at 64. As he points out at fn 22, any proposals designed to incorporate the requirement of unity and the duty of cooperation into the EC Treaty were rejected at the 1996–97 IGC. See further R Torrent, ‘The ′Fourth Pillar′ of the European Union after the Treaty of Amsterdam’ in Dashwood and Hillion, above n 4, 221 at 231ff. 6 As will become evident, the phrasing of the notion has significantly evolved in the case law. 7 The retrospective approach adopted in this chapter necessitates extensive use of the pre-Lisbon EU glossary (eg ‘Community’, ‘EC’, ‘pillars’). The new, ‘depillarised’, terminology has nevertheless been included wherever deemed appropriate. 8 An acceptance which Rass Holdgaard suggests in ch 8 of his External Relations Law of the European Community—Legal Reasoning and Legal Discourses (Alphen aan den Rijn, Wolters Kluwer, 2008); see also chapter nineteen in this volume by Allan Rosas. 9 Further, see the chapter of Alan Daswhood in this volume. 10 Ruling 1/78 IAEA [1978] ECR 2151. It has, however, been suggested that the Court had already hinted at the need for the then Community and the Member States to cooperate in the conduct of external relations in two previous judgments: Case 22/70 Commission v Council (ERTA) [1971] ECR 263; and Joined Cases 3, 4 & 6/76 Kramer [1976] ECR 1279, paras 34–35. See also P Eeckhout, External relations of the European Union—Legal and constitutional foundations (Oxford, Oxford University Press, 2004) 193; J Heliskoski, Mixed agreements as a technique for organizing the international relations of the European Community and its Member States (The Hague/London/New York, Kluwer Law International, 2001) 62; and J Temple Lang, ‘The ERTA judgment and the Court’s case law on competence and conflict’ (1986) 3 Yearbook of European Law 183. 11 At least until the Treaty of Nice, which amended the TEC and the TEU, introduced mixity in Art 133(6) EC. In this regard, see the Opinion of A-G Kokott in Case 13/07 Commission v Council, 26 March 2009, nyr. 12 Art 102 EAEC.

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Mixity and Coherence in EU External Relations the general principle of loyal cooperation, the Court emphasised the need for ‘close association between the institutions of the Community and the Member States both in the process of negotiation and conclusion [of such agreement], and in fulfilment of obligations entered into,’13 adding that ‘once the convention has entered into force, its application … entail(s) close cooperation between the institutions of the Community and the Member States’.14 The Court later opined that such ‘duty of cooperation … must also apply in the context of the EEC Treaty,’15 but remained cryptic as regards its legal foundation in this particular context.16 Hence, in contrast to Ruling 1/78, Opinion 2/91 and several subsequent pronouncements17 do not explicitly relate such a duty to the general principle of loyal cooperation enshrined then in Article 10 EC. Instead, the European Court posits that: [t]his duty of cooperation, to which attention was drawn in the context of the EAEC, 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. (emphasis added)18

Despite the Court’s silence, the legal foundation of the duty of cooperation may nevertheless be located in the Treaty provisions establishing the principle of loyal cooperation (Article 4(3) TEU, ex-Article 10 EC). As indicated by the wording of the above excerpt, the Court in Opinion 2/91 transplanted to the EEC context the very duty it had previously envisaged in the context of Euratom, specifically on the basis of Article 192 EAEC which encapsulates the general principle of loyal cooperation. In doing so, the Court did not alter the nature and legal basis of the duty. The expression ‘to which attention was drawn in the context of the EAEC’ suggests that the duty of cooperation is not specific to Euratom. Rather, ‘attention was drawn’ then to a principle that transcended the boundaries of the different Community Treaties. As such, the duty is envisioned as one of the ‘foundations’ of the then Community legal order as a whole,19 if not one of

13

Ruling 1/78, above n 10, para 34. Ibid, para 36. 15 Opinion 2/91 ILO [1993] ECR I-1061. 16 J Heliskoski, ‘The ′duty of cooperation′ between the European Community and its Member States within the World Trade Organisation’ (1996) VII Finnish Yearbook of International Law 59 at 126–27; Editorial Comments, ‘The aftermath of Opinion 1/94 or how to ensure unity of representation for joint competences’ (1995) 32 CMLRev 385; N Neuwahl, ‘Shared powers or combined incompetence? More on mixity’ (1996) 33 CMLRev 667. 17 Eg Opinion 1/94 WTO [1994] ECR I-5267; Opinion 2/00 Cartagena Protocol on Biosafety [2001] ECR I-9713; Opinion 1/08 GATS (30 November 2009). 18 Opinion 2/91 ILO, above n 15, para 36. 19 In this regard, see Opinion 1/91 European Economic Area (I) [1991] ECR I-6079, where it holds that the Community Treaties (plural) established a new legal order (singular) for the benefit of which the Member States have limited their sovereign rights; the Court also refers there to ‘the very foundations of the Community’. See further H G Schermers, ‘Commentary on Opinions 1/91 and 1/92’ (1992) 29 CMLRev 991; A Dashwood, ‘The relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355 at 377. 14

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Christophe Hillion ‘constitutionalprinciples of the EC Treaty’ to which the Court forcefully referred in its Kadi ruling.20 That reading, if correct, also helps in comprehending the phrase ‘requirement of unity in the international representation of the Community’, a recurrent appendage to the duty of cooperation in various pre-Lisbon Court pronouncements. It has often been suggested that this requirement is one of the foundations of the duty,21 that serves to define the latter’s function and informs its application. This view is indeed corroborated by the Court’s evolving formulation of the link between the duty of cooperation and the ‘requirement of unity’. Thus, while Opinion 2/91 foresees that the ‘duty of cooperation … 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’, Opinions 1/94 and 2/00 present the duty as an ‘obligation to cooperate [that] flows from the requirement of unity in the international representation of the Community’.22 Framed in this latter perspective, the duty becomes a means to fulfil the unwritten ‘requirement of unity of international representation of the Community’; it aims at attenuating the plurality inherent to mixity, perceived as hampering the effectiveness of the Community external action.23 A look back at the early case law, however, indicates that, at least initially, the expression ‘since it results from the requirement of unity in the international representation of the Community’ had a different connotation and served another purpose. Arguably, that phrase encapsulated the ratio decidendi that the

20 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351; Opinion 1/91 European Economic Area (I), above n 19. 21 In this sense, see Eeckhout, above n 10, at 215; M Cremona, ‘Defending the Community Interest: The Duties of Cooperation and Compliance’ in M Cremona and B de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford, Hart Publising, 2008) 125 at 157; P Koutrakos, ‘The interpretation of mixed agreements under the preliminary reference procedure’ (2002) 7 European Foreign Affairs Review 25 at 49. 22 Opinion 1/94 WTO, above n 17; Opinion 2/00 Cartagena Protocol on Biosafety, above n 17, para 18. In Opinion 1/08 GATS (above n 17), the formula has been revised in a way that appears to strengthen the normative character of the requirement of unity: ‘The requirement of unity in the international representation of the Community calls in addition for close cooperation between the Member States and the Community institutions in the process of negotiation and conclusion of such agreements’ (para 136). 23 C W A Timmermans, ‘Organising joint participation of EC and Member States’ in Dashwood and Hillion, above n 4, 239 at 241; the author also relates the duty of cooperation to old Art 116 EEC—repealed by the Treaty of Maastricht—which provided that from the end of the transitional period onwards, Member States were, in respect of all matters of particular interest to the common market, to proceed within the framework of international organisations of an economic character only by common action. Consider also the Editorial Comments: ‘The aftermath of Opinion 1/94 or how to ensure unity of representation for joint competences’ (1995) 32 CMLRev 385; cp T Tridimas, ‘The WTO and OECD Opinions’ in Dashwood and Hillion, above n 4, 48 at 59. See also P L H van den Bossche, ‘The European Community and the Uruguay Round Agreements’ in J H Jackson and A O Sykes (eds), Implementing the Uruguay Round (Oxford, Clarendon Press, 1997) 62; 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 Law International, 1998) 276 at 276–77; and R Leal-Arcas, ‘Unitary character of EC external trade relations’ (2001) 7 Columbia Journal of European Law 355.

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Mixity and Coherence in EU External Relations duty of cooperation envisaged in the Euratom context ‘must also’ (emphasis added) apply in that of the EEC. The term ‘unity’ in ‘requirement of unity in the international representation of the Community’ (emphasis added) thus referred to the unity of the international representation of the Community legal order comprising various Communities but based on a unity of foundations and principles.24 Thus read, the unity of the international representation of the Community did not, at least initially, relate to the requirement of unity between the Community and Member States, to be fulfilled by cooperation. It is only at a later stage that the function of the phrase ‘requirement of unity in the international representation of the Community’ has seemingly been judicially altered and presented as the normative basis of the duty of cooperation as such, as epitomised by Opinion 1/94, and more recently by Opinion 1/08. In other words, the requirement of unity was not originally envisioned as a foundation of the duty of cooperation but as a means to apply it to the EEC context, its foundation being the same as in the Euratom context, namely, the general principle of loyal cooperation. That the foundation of the duty of cooperation is ultimately to be located in the general principle of loyal cooperation rather than in the ‘requirement of unity’ has indeed been confirmed by the Court of Justice in its MOX Plant verdict, involving the joint participation of the Community and the Member States in the United Nations Convention on the Law of the Sea (UNCLOS).25 The factual details of the case will be spelled out later. At this stage, it suffices to mention the passage where the Court confirms the link between the duty of cooperation and the general principle of loyal cooperation: The Court has pointed out that, in all the areas corresponding to the objectives of the EC Treaty, Article 10 EC 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 … The Member States assume similar obligations under the EAEC Treaty by virtue of Article 192 EA. The Court has also emphasised that the Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement . . .26

It is the first time, and as such noteworthy, that the Court refers to Article 10 EC when evoking the specific duty of cooperation applicable to mixed agreements, in the context of the EC Treaty. While they are mentioned in two separate paragraphs, the Court’s reasoning indicates that the duty of cooperation and the general principle of loyal cooperation are intimately related, and that the former

24 An authority to support this proposition is Case C-221/88 ECSC v Faillite Acciaierie e ferriere Busseni SpA [1990] ECR I-495, where the Court insists on the cohesion and coherence of the Community Treaties (see paras 10–17). 25 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. 26 MOX Plant, above n 25, para 174.

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Christophe Hillion is being envisaged as a specific application of the latter, as initially suggested by Ruling 1/78.27 Indeed, it is striking that the Court omits to refer here to the almost proverbial ‘requirement of unity’. By including an express reference to Article 10 EC, the Court clarifies and arguably firms up the constitutional foundation of the ‘duty of cooperation’ between the Member States and the Community: it stems from the principle then enshrined in Article 10 EC (now in Article 4(3) TEU), rather than from the unwarranted ‘requirement of unity’.28 Arguably this permutation conceals a subtle change in the Court’s conception of the duty, whereby the latter is deemed to ensure ‘the coherence and consistency of the action [of the then Community] and its international representation’29 rather than ‘unity in the international representation of the Community’.30 Whereas in the latter conception the idea is to merge all voices into one, and thus to obliterate plurality on the ground that it undermines the Community’s international posture, in the former conception, by contrast, plurality is acknowledged and addressed through constraining coordination, to ensure that all voices speak the same language.31 III.

THE CONSTRAINING EFFECTS OF THE DUTY OF COOPERATION

As the duty of cooperation stems from the general principle of loyal cooperation,32 now enshrined in Article 4(3) TEU, the latter’s interpretation and application ought to inspire the former.33 Hence, in the specific context of mixed 27 The application of the principle of loyal cooperation may take other forms, such as the AETR effect, as recalled in the Open Skies judgments (Case C-466/98 Commission v United Kingdom [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-9575; 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; and Case C-476/98 Commission v Germany [2002] ECR I-9855), and at para 113 of Opinion 1/03 Lugano Convention [2006] ECR I-1145. 28 It may be recalled that legal scholarship generally conceives of the duty of cooperation as a specific application of the principle of loyal cooperation, and at the very least that there is a connection between the two. See, eg, I McLeod, I D Hendry and S Hyett, The external relations of the European Communities (Oxford, Clarendon Press, 1996) 145; M Cremona, ‘External relations and external competence: the emergence of an integrated policy’ in P Craig and G de Búrca (eds), The evolution of EU law (Oxford, Oxford University Press, 1999) 137 at 170; Heliskoski, above n 10, at 64; R Frid, The relations between the EC and international organisations. Legal theory and practice (The Hague, Kluwer Law International, 1995) 149. See also E Neframi, ‘L’exercice en commun des compétences illustré par le devoir de loyauté’ in P-Y Monjal and E Neframi (eds), Le ’commun’ dans l’Union européenne (Brussels, Bruylant, 2009) 179. 29 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805; see further section III C. below. 30 Opinion 2/91 ILO, above n 15; Opinion 1/94 WTO, above n 17. 31 Para 136 of Opinion 1/08 GATS (above n 17), seems to support that view. 32 On loyal cooperation, see eg Neframi, above n 28; K Mortelmans ‘The principle of loyalty to the Community (Article 5 EC) and the obligations of the Community institutions’ (1998) 5 Maastricht Journal of European and Comparative Law 67; M Blanquet, L’article 5 du Traité CEE (Paris, LGDJ, 1994) 417–26; O Due, ‘Artikel 5 van het EEG-Verdag. Een bepaling met een federal karakter’ (1992) Social-Economische Wetgeving 82; J Temple Lang, ‘Community constitutional law: Art 5 EEC

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Mixity and Coherence in EU External Relations agreements, Member States shall facilitate the achievement of the Union’s tasks, as well as abstain from any measure which could jeopardise the attainment of its objectives, ultimately ‘to ensure the coherence and consistency of the [Union]’s action and its international representation’.34 Both the principle of loyal cooperation in general, and the duty of cooperation in particular, are expressions of Union solidarity, which, as the Court has suggested, is ‘the basis … of the whole of the [Union] system’.35 In practical terms, several pronouncements of the Court of Justice indicate that the duty of cooperation may be invoked before the Court of Justice (section III.A.), and that its legal effects are not conditional upon the existence of a specific instrument that purports to fulfil it (section III.B.). The Court has also begun to articulate specific procedural obligations flowing directly from that duty, a trend possibly inspired by its prior jurisprudence on the application of the principle of loyal cooperation, in the context of EU external relations more generally (section III.C.).

A. A duty involving legal obligations The question of whether the duty of cooperation entails legal and enforceable obligations was addressed by the Court of Justice in its FAO judgment.36 Without dwelling too much on the factual details of the case,37 it suffices to recall that in the context of the then Community’s participation in the Food and Agriculture Organisation (FAO),38 an Arrangement was agreed by the Commission and the Council to decide who, of the Community or the Member States, should act at FAO meetings.39 The Commission challenged a Council Decision granting voting rights to the Member States on an agreement on which the Community should allegedly have voted, in line with the terms of the Arrangement. The Court Treaty’ (1990) 27 CMLRev 645; V Constantinesco, ‘L’article 5 EEC: de la bonne foi à la loyauté communautaire’ in F Capotorti et al (eds), Du droit international au droit de l’intégration: liber amicorum Pierre Pescatore (Baden Baden, Nomos Verlag, 1987) 97; J Temple Lang, ‘Article 5 of the EEC Treaty: the emergence of constitutional principles in the case-law of the Court of Justice’ (1987) 10 Fordham International Law Journal 503. 33 On interpretation and application of loyal cooperation, see R A Wessel, ‘The international legal status of the European Union’ (1997) 2 European Foreign Affairs Review 109 at 120. 34 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 60. 35 Case 6 & 11/69 Commission v France [1969] ECR 523, para 16: the Court refers to ‘[t]he solidarity which is at the basis of… the whole of the Community system in accordance with the undertaking provided for in [ex] Article [10] of the Treaty’. 36 Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469. 37 Further, see J Heliskoski, ‘Internal struggle for international presence: the exercise of voting rights within the FAO’ in Dashwood and Hillion, above n 4, 79. 38 Further: J Schwob, ‘L’amendement à l’Acte constitutif de la FAO visant à permettre l’admission en qualité de membre d’organisations d’intégration économique régionale et la Communauté économique européenne’ (1993) 29 Revue Trimestrielle de Droit Européen 1. 39 Arrangement between the Council and the Commission regarding the preparation for FAO meetings and statements and voting, reproduced in Frid, above n 28, at 398.

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Christophe Hillion indeed found that the thrust of the issue was located in an area of exclusive Community competence, and held that by giving the right to vote to the Member States, the Council had breached the Arrangement and particularly Section 2.3 thereof.40 The impugned Council Decision was thus annulled. Interestingly for the present discussion, the Court of Justice underlined that ‘Section 2.3 represent(ed) a fulfilment of [the] duty of cooperation’41 and as such constituted a legal instrument involving obligations for its signatories.42 The Court thereby recognised that the duty of cooperation could entail legal obligations which, particularly where specified in an inter-institutional agreement, could subsequently be invoked and enforced.43 Moreover, while the Arrangement was concluded by the Commission and the Council, it was found to bind the Member States as well, on the grounds that it defined clear obligations towards them. In the words of the Court, the Arrangement represents a ‘fulfilment of the duty of cooperation between the Community and the Member States within the FAO’ (emphasis added).44 Indeed, in underlining that the Arrangement amounted to the fulfilment of the duty specifically ‘within the FAO’,45 the Court suggested that it would have to be ‘fulfilled’ through other specific arrangements in the context of other mixed agreements,46 unless it could apply regardless.

B.

Unconditional effects

The Dior judgment supports the view that the duty of cooperation is capable of having legal effects notwithstanding the absence of any specific inter-institutional 40 Section 2.3 of the Arrangement provides that when an agenda item deals with matters containing elements of national and of Community competence, the Commission shall express the common position achieved by consensus when the thrust of the issue lies in an area within the exclusive competence of the Community. The Commission should then vote in accordance with this common position. By contrast, when the thrust of the issue lies in an area outside the exclusive competence of the Community, the Presidency expresses the common position, and Member States vote in accordance with that position. 41 Emphasis added; ‘fulfilment’ is translated as ‘mise en oeuvre’ in the French version of the Court decision. 42 A-G Jacobs approached this arrangement as ‘pragmatic’ (para 61); see his Opinion in Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469; J Sack, ‘The European Community’s membership of international organisation’ (1995) 32 CMLRev 1227; T Tridimas, ‘The WTO and OECD Opinions’ in Dashwood and Hillion, above n 4, 48 at 59. 43 Eeckhout, above n 10, at 214. 44 Further, Timmermans, above n 23, at 244. 45 Annex II of the Arrangement indeed contains a statement by the Council and the Commission according to which ‘this arrangement reflects the special circumstances of Community participation in the FAO and has no implications regarding other international organizations, including those of the United Nations system’. 46 Eg, Arrangement between the Council and the Commission concerning participation in international negotiations on raw materials (so-called ‘Proba 20’), reproduced in E L M Völker and J Steenbergen, Leading cases and materials on the external relations law of the EC (The Hague, Kluwer, 1985) 48. Further, chapter seven by Joni Heliskoski in this book; also N Neuwahl, ‘Shared powers or combined incompetence? More on mixity’ (1996) 33 CMLRev 667 at 678ff.

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Mixity and Coherence in EU External Relations arrangement.47 In casu, the Court of Justice was asked to give a preliminary ruling on the interpretation of Article 50 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) included in the WTO Agreement, which, in line with Opinion 1/94, was concluded by the Community and its Member States under joint competence.48 Although the Court had already established its jurisdiction in relation to that provision,49 it was nevertheless disputed in the present case on the ground that the national court’s reference concerned the application of that provision to an area (industrial design) on which the Community had not yet legislated. Allegedly, therefore, the national court was asking the Court of Justice to interpret a provision of a mixed agreement which, in this particular instance, was to apply to a situation falling outside the scope of Community law. Relying on the fact that TRIPs was concluded by the Community and the Member States under joint competences, the Court held that where a case is brought before it in accordance with the provisions of the Treaty, it has jurisdiction to define the obligations which the Community has thereby assumed and, for that purpose, to interpret TRIPs. The Court added: … where a provision such as Article 50 TRIPs can apply both to situations falling within the scope of national law and to situations falling within that of Community law, as is the case in the field of trademarks, the Court has jurisdiction to interpret such provision in order to forestall future differences of interpretation … In that regard, the Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they concluded the WTO agreement, including TRIPs. Since Article 50 of TRIPs constitutes a procedural provision which should be applied in the same way in every situation falling within its scope and is capable of applying both to situations covered by national law and to situations covered by Community law, that obligation requires the judicial bodies of the Member States and the Community, for practical and legal reasons, to give it a uniform interpretation. (emphasis added)50

For present purposes, the Dior ruling is significant for at least three reasons.51 First, the judgment adds further support to the proposition that the duty of cooperation does involve obligations of a legal nature. It is noticeable that the Court does not refer to ‘duty’ at all in its judgment, but to the notion of

47

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Christophe Hillion ‘obligation’, thereby strengthening its normative character.52 The Court’s use of the expression ‘close cooperation’,53 rather than cooperation tout court, adds to this normative reinforcement. More importantly, the Court’s pronouncement conspicuously supports the proposition that the duty of cooperation need not be formalised in an inter-institutional agreement, such as the FAO Arrangement, to generate legal consequences. It binds, in itself, without being conditional upon further ‘mise en oeuvre’.54 Secondly, Dior makes it plain that both judicial and political authorities of the Member States and the Union are bound by the obligation to cooperate closely.55 The Court’s ruling thus echoes Advocate-General Tesauro’s Opinion in the Hermès case, where he suggested that the Court’s interpretation represents its contribution to the fulfilment of the duty of cooperation between institutions and Member States, which is a necessary supplement to that of political institutions. In his words, ‘the absence of centralised interpretation could completely undo the results achieved by the obligation to cooperate in the negotiations and conclusion of the provisions in question’.56 Thirdly, Dior suggests that the duty of cooperation may be used as the basis for the Court to assert its competence to interpret the ‘procedural provision’ at hand, irrespective of the fact that the latter applies outside the scope of Community law.57 For the Court, the ‘obligation (of close cooperation) requires the judicial bodies of the Member States and the Community, for practical and legal reasons, to give … a uniform interpretation’ (emphasis added) to Article 50 TRIPs, on the grounds that it constitutes ‘a procedural provision which should be applied in the same way in every situation falling within its scope and is capable of applying both to situations covered by national law and to situations covered by Community law’.58 Indeed

52 The Court had already used the word ‘obligation’ before, particularly in Opinion 1/94 WTO, above n 17, para 108. 53 Ibid. 54 See the French version of the FAO judgment. 55 See the Opinion of A-G Colomer in Case C-431/05 Merck Genéricos (23 January 2007) at para 56. On judicial cooperation, see also Joined Cases C-261/07 VTB-VAB NV v Total Belgium NV and C-299/07 Galatea BVBA v Sanoma Magazines Belgium NV (23 April 2009); the Court’s Köbler jurisprudence (Case C-224/01 Gerhard Köbler [2003] ECR I-10239) gives more teeth to that duty of judicial cooperation. 56 A-G Tesauro had already made this connection in para 21 of his Opinion in Hermès, above n 49. See also Koutrakos, above n 21, 25 at 38–39 and 49. 57 In principle, the Court’s jurisdiction under Art 234 EC is limited to questions of interpretation and validity of Community law; see eg Case 26/62 Van Gend en Loos [1963] ECR 1; Case 6/64 Costa v ENEL [1964] ECR 585. 58 Cp the Opinion of A-G Cosmas. The Court had already developed a similar approach in relation to preliminary references involving domestic rules which refer to, or incorporate notions of, Community law, eg Case C-222/01 British American Tobacco [2004] ECR I-4683, Case C-300/01 Doris Salzmann [2003] ECR I-4899, Case C-130/95 Giloy [1997] ECR I-4291, Case C-28/95 Leur-Bloem [1997] ECR I-4161, Case C-297/88 Dzodzi v Belgium [1990] ECR I-3763. For reservations on this analogy, see A-G Tesauro in his Opinion in Case C-53/96 Hermès, above n 49, at 3620, fn 29. Further, Heliskoski, above n 10, at 66.

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Mixity and Coherence in EU External Relations [o]nly the Court of Justice acting in cooperation with the courts and tribunals of the Member States pursuant to Article [234] of the Treaty is in a position to ensure such uniform interpretation … (emphasis added)59

The Court’s pre-emptive interpretation of Article 50 TRIPs, based on the duty of cooperation, circumscribes as a consequence the margin for manoeuvre of the national courts in the implementation of the mixed agreement.60 The duty of cooperation thus amounts to requiring the Member States and Union authorities to ensure unity in the implementation of a mixed agreement’s provision that falls outside the scope of Community law.61 In other words, it entails an obligation of result. Given the far-reaching implications of the Court’s interpretation for the Member States’ judicial authorities,62 the twofold distinction between procedural and non-procedural provisions, and between those that are ‘capable of applying both to situations covered by national law and to situations covered by Community law’ and those that are not, becomes crucial,63 a distinction which— incidentally—the Court is, itself, in charge of articulating.64 Following on from this point, it may be wondered whether the Dior conception of the duty of cooperation as an obligation of result when applied at the judicial level, could reverberate through other levels of government equally bound by the duty of cooperation. In particular, could other national authorities and EU institutions be expected to achieve an equivalent level of cooperation, here envisaged as unity, in the implementation of the provisions of mixed agreements?

C. A duty involving specific procedural obligations Having established that the duty of cooperation is capable of unconditional and potentially far-reaching legal effects, the Court has also spelled out specific 59 Dior, above n 47, para 38. Further, A Dashwood, ‘Preliminary rulings on the interpretation of mixed agreements’ in D O’Keeffe and A Bavasso (eds), Judicial review in EU law—Liber Amicorum in Honour of Lord Slynn of Hadley, vol I (The Hague/London/Boston, Kluwer Law International, 2000) 173 at 173–74. 60 On the idea of pre-emptive jurisdiction, although in the context of another procedure, see eg R Plender ‘The European Courts’ pre-emptive jurisdiction: opinions under Article 300(6) EC’ in O’Keeffe and Bavasso, above n 59, 203. 61 As well established, such an authoritative interpretation ought to be taken into account by other Member States’ judiciary (Cases 28–30/62 Da Costa [1963] ECR 31, Case 283/81 Srl CILFIT [1982] ECR 3415) Further, A Trabucchi, ‘L’effet erga omnes des décisions préjudicielles rendues par la Cour de justice des Communautés européennes’ (1974) Revue Trimestrielle de Droit Européen 56. 62 The Court has highlighted the limits of the implicit equation – ie jurisdiction on mixed agreements provisions as its contribution to the fulfilment of the duty of cooperation – in its judgment in Case C-431/05 Merck Genéricos [2007] ECR I-7001. Further, see chapters six and nine by Panos Koutrakos and Inge Govaere respectively in this volume; also R Holdgaard’s annotation (2008) 45 CMLRev 1233. 63 In this regard, see the Opinion of A-G Tizzano of 29 June 2004 in Case C-245/02 Anheuser— Bush (paras 110–15), and the judgment of the Court at [2004] ECR I-10989. 64 In this respect, see the Court’s judgment in Case C-431/05 Merck Genéricos [2007] ECR I-7001.

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Christophe Hillion procedural obligations that stem directly from that duty. This was made particularly clear in the MOX Plant judgment.65 The case concerned a dispute between Ireland and the United Kingdom over the operation of a plant in Sellafield, in the North West of England, on the coast of the Irish Sea, which recycles plutonium from spent nuclear fuel and converts it into mixed oxide fuel (MOX), used as an energy source in nuclear power plants. Alleging various UK breaches of the provisions of UNCLOS, Ireland instituted proceedings concerning that plant against the UK before an arbitral tribunal established under Annex VII of UNCLOS. The Commission considered that the dispute concerned Community law and thus, by having instituted proceedings against the UK in the framework of UNCLOS, Ireland had breached Articles 292 EC (now Article 344 TFEU) and 193 EAEC on the exclusive jurisdiction of the Court. The Commission also contended that Ireland had violated the provisions of Article 10(2) EC (replaced, in substance, by Article 4(3) TEU, al 3) and 192(2) EAEC,66 notably because it instituted the proceedings before the arbitral tribunal without having first informed and consulted the competent Community institutions. Having recalled the function of Article 10 EC, the Court reiterated the ‘obligation of close cooperation’ evoked in Dior, which binds Member States and institutions ‘in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement’. It added that The act of submitting a dispute … to a judicial forum such as the Arbitral Tribunal involves the risk that a judicial forum other than the Court will rule on the scope of obligations imposed on the Member States pursuant to Community law. … In those circumstances, the 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 Community institutions prior to instituting dispute-settlement proceedings concerning the MOX plant within the framework of the Convention.67

The Court thus suggests that the ‘obligation of close cooperation’ coined in Dior entails procedural duties, namely, the duties of prior information and consultation.68 These are binding, and defaulting in compliance can lead to infringement proceedings.69 The Court nevertheless abstained from holding that Ireland should have refrained from instituting the UNCLOS proceedings, given the duty 65

Case C-459/03 Commission v Ireland (MOX Plant), above n 25. Both articles foresee that Member States ‘shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty’. 67 MOX Plant, above n 25, paras 177 and 179. The Court found that the same duties of prior information and consultation were also imposed on Ireland by virtue of the EAEC Treaty. 68 They are reiterated at para 181. 69 See further E Neframi, ‘La mixité éclairée dans l’affaire Commission contre Irlande du 30 mai 2006 (Affaire MOX): une double infraction, un triple apport’ (2007) Revue du Droit de l’Union européenne 687. 66

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Mixity and Coherence in EU External Relations of cooperation. This silence could be taken as an indication that, in the Court’s view, the duty of cooperation falls short of requiring such abstention. On the other hand, this part of the judgment may have been drafted in such a way because there was no particular need for the Court to be more specific on this point, given that it had already found that instituting the proceedings under UNCLOS fell foul of the exclusive jurisdiction of the Court under Article 292 EC (now Article 344 TFEU). The question of whether the duty of cooperation may amount to a duty to abstain would thus remain open. In this respect, the earlier case law on the effects of former Article 10 EC, and notably two infringement cases against Luxembourg and Germany,70 may provide some insight into the Court’s approach. The two Member States had negotiated and/or concluded bilateral agreements on inland waterways transport with central European States—eg Poland, Romania, Slovakia, before their accession to the Union—while the Commission had been mandated by decision of the Council to negotiate a Community agreement precisely on that subject, with the same third countries. The Court found that, while they were still competent to act in the field, the two defendants were nevertheless bound by obligations flowing from then Article 10 EC, which in the event they were found to have breached. The Court thereby conceived the duty of cooperation, as generating, of itself, specific procedural obligations binding Member States in the exercise of their competence, and which may successfully be invoked before it in case of non-compliance. In particular, the Court opined that the Member States’ failure to cooperate or consult with the Commission ‘compromised the achievement of the Community’s task’ in the case of Luxembourg, ‘jeopardised the implementation of the Council Decision [mandating the Commission] and, consequently, the accomplishment of the Community’s task and the attainment of the objectives of the Treaty’, in the case of Germany. The Court further pointed out that the Commission’s mandate to negotiate an agreement, based on a Council decision, and ‘marking the beginning of a concerted Community action at international level’, did not involve a duty of abstention on the part of those Member States. This came after a reminder of earlier case law seemingly suggesting otherwise: . . . the Member States are subject to special duties of action and abstention in a situation in which the Commission has submitted to the Council proposals which, although they have not been adopted by the Council, represent the point of departure for concerted Community action (see Case 804/79 Commission v United Kingdom [1981] ECR I-1045, paragraph 28). The adoption of a decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community marks the start of a concerted Community

70 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, and Case C-433/03 Commission v Germany [2005] ECR I-6985.

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Christophe Hillion action at international level and requires, for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation between the latter and the Community institutions in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation. (emphasis added)71

Behind an apparent tension between the two paragraphs may lie the suggestion that the effect of the duty of cooperation in general, and its ability to include a duty of abstention in particular, is a function of the nature of the EU competence at hand. The Commission v UK case referred to by the Court concerned the protection of the biological resources of the sea, which is an area of a priori exclusive Union competence,72 thus leaving no space for Member States’ autonomous initiatives. It is thus unsurprising that the Court should evoke Member States’ ‘special duties of action and abstention’ (emphasis added), particularly where the Commission has submitted proposals to the Council in the field. By contrast, the infringement proceedings against Luxembourg and Germany concerned an area, ie inland waterways transport, in which the Court found that the Community had not acquired exclusive powers pursuant to the AETR jurisprudence, in view of the incomplete EC harmonisation.73 Although the Council had formally endowed the Commission with a negotiating mandate, the duty of cooperation could not involve the Member States’ duty of abstention to negotiate and conclude bilateral agreements, for it would in effect amount to an AETR effect by anticipation. At the same time, not all ‘duties of action and abstention’ seem to be ruled out. The Court held that the fact that the Luxembourg Government ha[d] declared its willingness to terminate all the contested bilateral agreements on the entry into force of a multilateral agreement binding the Community [did] not demonstrate compliance with the obligation of genuine cooperation laid down in Article 10 EC.74

In the same vein, it was found in Commission v Germany that As it was to take place after the negotiation and conclusion of that agreement, such a denunciation would have had no practical effect since it would not have facilitated the multilateral negotiations conducted by the Commission.75

The Court thus indicates that even if the Member States had taken measures to prevent a legal conflict between their international commitments and the eventual EU agreement, their bilateral undertakings in themselves still fell foul of EU law, namely the duty of cooperation, because they would not facilitate negotiations by the Union. The Court thereby implicitly points to duties other than 71 72 73 74 75

Eg Commission v Luxembourg, above n 70, paras 59–60. On this terminology, see Dashwood and Heliskoski, above n 4. Eg Commission v Germany, above n 70, para 53. Commission v Luxembourg, above n 70, para 65. Commission v Germany, above n 70, para 72.

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Mixity and Coherence in EU External Relations those of information and consultation. These additional duties, flowing from the duty of cooperation, come close to ‘duties of action and abstention’ which purport to prevent the EU negotiations, and more generally the exercise of its powers, being compromised by Member States’ conduct. In practice, such duties could take the form of, for instance, a requirement to include/refrain from including specific provisions in the bilateral agreement,76 possibly under the supervision of one of the EU institutions (eg the Commission), to guarantee that the bilateral commitments would not compromise Union’s action.77 A fortiori, the duty of cooperation could entail an obligation for Member States to take early steps to eliminate the risk of conflict with the action liable to be undertaken by the EU, and to adjust the bilateral agreement while the Union process of decision-making is advancing. Indeed, it could be posited that the more advanced the process of establishing a EU position, the more specific and constraining the obligations flowing from the duty of cooperation. For instance, once the external agreement is signed by the Union and the Member States, they may be subject to ‘special duties of action and abstention’, and in particular the duty to refrain from taking ‘any measures liable seriously to compromise the result prescribed’ by the agreement in the context of the ratification process.78 This could imply that Member States and the EU refrain from acting in a way that would make the ratification of the agreement more difficult.79

76 In this regard, see Case C-205/06 Commission v Austria and Case C-249/06 Commission v Sweden (3 March 2009), and A-G Maduro’s Opinion, delivered on 10 May 2008. The Court held that Member States are expected to take appropriate steps to adjust bilateral agreements to ensure that EU powers can be exercised effectively. See also the Opinion of A-G Sharpston in Case C-118/07 Commission v Finland (10 September 2009). 77 Regulation 847/2004 ([2004] OJ L/157) attests that the duty of cooperation may amount to a EU monitoring of Member States’ bilateral negotiations in areas where they have powers. It establishes a procedure of notification and authorisation of Member States’ bilateral negotiations in the field of air transport following the Open Skies judgments. See further Cremona, above n 21, at 141 and 167; C Hillion, ‘A Look Back at the Open Skies’ in M Bulterman, L Hancher, A McDonnell and A Sevenster (eds), Views of European Law from the Mountain (Alphen aan den Rijn, Wolters Kluwer, 2009) 257; also id ‘ERTA, ECHR and Open Skies—Laying the grounds of the EU system of external relations’ in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law (Oxford, Hart Publishing, 2010). An equivalent system is envisaged in other domains: eg Proposal for a Regulation, based on former Articles 61(c) (replaced by Articles 67 TFEU) and former 65 EC (now Article 81 TFEU), establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual obligations (COM(2008) 893, 23.12.2008); Proposal for a Regulation, also based on former Articles 61(c) (replaced by Articles 67 TFEU) and former 65 EC (now Article 81 TFEU), establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations (COM(2008)894, 19.12.2008). 78 The Inter-Environnement Wallonie jurisprudence (Case C-129/96, [1997] ECR I-7411), established in relation to the implementation of adopted directives, could thus be applied mutatis mutandi to signed external agreements. A-G Maduro has also made the suggestion that that jurisprudence should be applied wherever the EC Treaty endowed the Community with a power to act, to ensure

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Christophe Hillion Arguably, this jurisprudence on the effects of former Article 10 EC (replaced in substance by Article 4(3) TEU) in the context of external relations inspires the way in which the Court conceives of the duty of cooperation in the specific context of mixed agreements. Hence, in the light of the above, the Court’s silence in the MOX Plant case, on a possible duty for Ireland to abstain from instituting proceedings, should not necessarily be read as a denial.80 The Court may shed further light on this point in the pending infringement proceedings against Sweden (the so-called ‘PFOS case’).81 IV.

THE DIFFERENTIATED APPLICATION OF THE DUTY OF COOPERATION

In various pronouncements, the Court has held that the duty to cooperate is triggered ‘where it is apparent that the subject matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States.’82 It operates ‘between the Member States and the Community institutions, both in the process of negotiation and conclusion, and in the fulfilment of the commitments entered into’,83 and it is ‘for the Member States and the Community institutions to take all the measures necessary so as best to ensure such cooperation’.84 These three general propositions point to a potentially wide scope of application of the duty of cooperation. But how wide? In particular, does the duty also that Member States’ actions do not compromise the fulfilment of the Community objective; see his Opinion of 10 May 2008 in Case C-205/06 Commission v Austria and Case C-249/06 Commission v Sweden, above n 76; the Court ruled on a different basis in its rulings of 3 March 2009. See also, in this sense, ‘Re-admission agreements—consequences of the entry into force of the Amsterdam Treaty’, JHA Council conclusions of 27–28 May 1999, Doc 8654/99, p 8. 79 See the chapters by Jeno Czuczai, Frank Hoffmeister and Ivan Smyth in this volume. See also G de Baere, Constitutional Principles of EU External Relations (Oxford, Oxford University Press, 2008) 256. 80 It is noteworthy that in its reasoning, the Court referred to an early letter of the Commission’s services which contended that the dispute was a matter falling within the exclusive jurisdiction of the Court, eventually to hold that Ireland should have informed and consulted with the Commission, as if the Commission’s view should have then led Ireland to refrain from instituting the proceedings. 81 Case C-246/07 Commission v Sweden: Sweden proposed unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on Persistent Organic Pollutants, which foresees the mandatory elimination of pollutants included therein. Both the Union and its Member States are party to this Convention. The Commission claims that as a consequence of Sweden’s unilateral proposal, the EU’s international representation was divided; it also points out that Sweden acted unilaterally with regard to PFOS, in spite of its awareness that the EU was engaged in drafting legislation on the issue. The Commission thus contends that Sweden’s action meant that the Union and Member States could not jointly present proposals for additions to the Stockholm Convention, and that Sweden has therefore failed to fulfil its obligations under former Articles 10 EC and 300(1) EC (now Articles 4(3) TEU and 218 TFEU). See A-G Maduro’s Opinion delivered on 1 October 2009. 82 Eg Opinion 1/94 WTO, above n 17, para 108; Opinion 2/00 Cartagena Protocol on Biosafety, above n 17, para 18. 83 Eg Opinion 1/94 WTO, above n 17, para 108; Opinion 2/91 ILO, above n 15, para 36. 84 Opinion 2/91 ILO, above n 15, para 38.

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Mixity and Coherence in EU External Relations involve legal effects in relation to Member States acting either individually, or collectively in areas where they retain powers? Given that the duty of cooperation works both ways, it may also be wondered whether the institutions are bound by the duty of cooperation in relation to Member States, in areas where the Union is exclusively competent. This section focuses on the application of the duty at the level of implementation of mixed agreements, where it seems to be the most tangible.85 It argues that while it has legal effects in virtually all the above-mentioned configurations, the duty’s application is in practice a function of the legal context in which it is set to operate, and in particular on the type and nature, if not degree, of mixity encapsulated in the agreement. Hence, agreements containing provisions involving the interlinked exercise of Member States and Union competences (ie covering areas where the Union has competence, albeit non-exclusive) warrant a more imperative duty of cooperation (section IV.A.). While applying also to mixed agreements involving independent exercise of Member States’ and Union’s respective competences (ie covering Member States and/or EU exclusive powers), the duty appears to be less imperative (section IV.B.).

A. The duty of cooperation and interlinked exercise of Member States and Union competences The duty of cooperation has been held to be ‘more imperative’ when the mixed agreement is constituted by sub-agreements which are ‘inextricably interlinked’, as for example in the WTO Agreement.86 The Court also considered that Member States and EU institutions have an ‘obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement’ and that this is in particular the position in the case of a dispute which … relates essentially to undertakings resulting from a mixed agreement which relates to an area … in which the respective areas of competence of the Community and the Member States are liable to be closely interrelated … (emphasis added)87

The notion that the duty is more constraining if the mixed agreements involve interlinked Member States and Union competences has led to two opposite conceptions of the application of the duty of cooperation. On one view, this particular configuration of mixity entails a duty of cooperation amounting to an obligation of result, to the effect that Member States and EU institutions must 85 On the application of the duty at the levels of negotiations and conclusion, see eg Holdgaard, above n 8, at 160. 86 Opinion 1/94 WTO, above n 17, para 109. The Court has also said that the duty is ‘all the more necessary’ when Member States have to act on behalf of the Community when the latter cannot be represented in an international organisation; Opinion 2/91 ILO, above n 15, para 37. 87 MOX Plant, above n 25, para 176.

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Christophe Hillion always act jointly, on the basis of a co-ordinated position, particularly when implementing the agreement. Absent such coordinated position, there can be no action at all. This conception is based on the proposition that the duty of cooperation is ‘directly linked by the Court to the requirement of unity in the international representation’.88 On another view, the duty of cooperation remains, in any event, an obligation of conduct. Member States are only bound by an obligation to use their best endeavours to reach a common position with the Union.89 If no such common position is reachable, it is for each Member State to defend its own interests as seems best to it.90 It is only in matters falling under the exclusive competence of the Union that failure to agree a position within the Council entails no action at all because, by definition, no position is taken.91 That the duty of cooperation is more imperative in the context of some mixed agreements is not in itself tantamount to involving an obligation of result. In Opinion 2/91, the Court held that the EU institutions and the Member States have to take ‘all the necessary measures so as best to ensure cooperation’ (emphasis added). Member States are thus under an obligation to do their best to ensure cooperation, that is an obligation of conduct. Indeed only a duty to strive to reach a common position can be ‘more imperative’ in some cases than in others, whereas a duty to reach a common position is always equally ‘imperative’.92 In addition, since the duty of cooperation involves mutual obligations, Union institutions should also take account of and give full force to the competence of the Member States when competence is shared.93 Moreover, the reference to the ‘requirement of unity’ cannot of itself turn the duty of cooperation into an obligation of result. While the Court has established a link between the two notions, it has never explicitly required that Member States and Community institutions take all measures to ensure such ‘unity’. The requirement of unity and the duty of cooperation remain distinct notions, with the former amounting to a guiding principle for the interpretation and operation of the duty, rather than a self-standing legal obligation.94 Only the cooperation,

88 Timmermans, above n 23, at 241–43; see also Editorial Comments, ‘The aftermath of Opinion 1/94 or how to ensure unity of representation for joint competences’ (1995) 32 CMLRev 385. 89 See chapter fifteen by Ivan Smyth in this volume. See also Opinion of A-G Tesauro in Hermès, above n 49, para 21 and fn 33. 90 McLeod, Hendry and Hyett, above n 28, at 149. 91 This principle applies both in case of a priori exclusivity and exclusivity resulting from the ERTA effect. For an illustration of Member States being prevented from acting internationally on their own in an area covered by internal rules, see the Hushkits dispute between the EU and the USA in the context of the International Civil Aviation Organisation, cited in A Rosas, ‘International disputes settlement: EU practices and procedures’ (2003) 46 German Yearbook of International Law 284 at 312–13. 92 McLeod, Hendry, and Hyett, above n 28, at 149. 93 I Hyett, ‘The duty of cooperation: a flexible concept’ in Dashwood and Hillion, above n 4, 248. To substantiate his views, he relies on Case C-230/81 Luxembourg v European Parliament [1983] ECR 255, para 37, Case C-65/93 European Parliament v Council [1995] ECR I-643, para 23. 94 See in this respect the Court’s formuation of the duty in para 136 of Opinion 1/08 GATS, above n 17.

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Mixity and Coherence in EU External Relations object of the duty, entails an obligation between the institutions and the Member States.95 Indeed, as suggested earlier, the function assigned to the phrase ‘requirement of unity’ is disputable.96 That the duty of cooperation can entail only an obligation of conduct, in the sense of ‘best endeavours’, may nevertheless be qualified, particularly in the context of mixed agreements involving interrelated areas of Member States and Union competence. As discussed in the previous section of this chapter (section III.C.), the Court has articulated procedural obligations deriving from the duty of cooperation, notably obligations of information and consultation in the MOX Plant case, which bind Member States and institutions in the context of a mixed agreement. While such procedural obligations constrain the conduct of the parties, they also appear to entail more than an obligation of conduct, in the sense that they require a particular action, if not, as suggested above, a particular abstention. Member States and institutions are not only expected to do their best efforts to inform/consult, they also must comply with such procedural obligations. Furthermore, in view of the Court’s Dior judgment, it appears that in certain circumstances, the duty of cooperation amounts to an obligation of result in the sense of Member States and institutions having to ensure the uniform implementation of provisions of a mixed agreement, even if these do not relate to EU law. As recalled earlier, the Court held that where a ‘procedural provision’ of a mixed agreement is ‘capable of applying both to situations covered by national law and to situations covered by Community law’, the obligation of cooperation requires the judicial bodies of the Member States and the Union, for practical and legal reasons, to give it a uniform interpretation. More than acting so as best to ensure cooperation, national courts are here ‘required’ to apply the interpretation given by the Court, on the basis of the duty of cooperation. The cooperation at hand does not involve any margin of manoeuvre for the national judicial authorities in the application of the provision concerned, regardless of the fact that the latter relates to an area where EU competence may be exercised. One could thereby speak of an obligation of result, although perhaps only in the specific Dior set of circumstances, when the autonomy of the EU legal order is at stake. The foregoing shed light on the more imperative application of the duty of cooperation in agreements characterised by interlinked Member States and EU competence. What remains to be examined is whether, and if so how, the duty of cooperation possibly entails obligations in the context of a mixed agreement where Member States and Union may exercise their powers independently from one another, ie where the agreement covers areas where the Member States and/or the EU enjoy exclusive competence.

95 96

Hyett, above n 93, at 250. MOX Plant, above n 25. See above, section II.

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Christophe Hillion B. The application of the duty of cooperation where Member States and Union exercise their respective competences independently It is well established that Member States cannot intervene in areas falling under the exclusive competence of the Union,97 unless specifically authorised.98 Conversely, in areas pertaining to their reserved competence, Member States are in principle free to act,99 though it is also well settled that the exercise of their powers is affected by the application of EU law.100 The question this section seeks to address is that of whether such application of EU law, beyond the scope of Union competence, also concerns the duty of cooperation (section IV.B.1.). It will then envisage the possible application of the duty of cooperation to EU institutions in areas of exclusive Union competence (section IV.B.2.).

1.

Member States’ duty to cooperate when exercising their retained powers

Various arguments appear to support the proposition that, while exercising their competences (reserved or transitional) within the context of a mixed agreement, Member States are indeed bound by EU law obligations, and in particular by the duty of cooperation.101 To begin with, the case law of the Court of Justice does not seem to preclude this possibility. As discussed earlier, the element which the Court generally identifies as triggering the application of the duty of cooperation is broadly formulated, namely, where it is apparent that the subject matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States …102

While in those instances the mixed agreements in issue cover areas where the Union does not have exclusive powers (eg WTO and ILO), the Court does not seem to condition and reserve the possible application of the duty to the specific type of mixed agreements involved in those cases. Instead, the Court’s formula is devised in general terms to the effect that the duty of cooperation applies, albeit 97

Case 22/70 Commission v Council (AETR) [1971] ECR 263. Case 41/76 Donckerwolcke and Schou [1976] ECR 1921; Case 174/84 Bulk Oil [1986] ECR 559; Case C-70/94 Werner [1995] ECR I-3189; and Case C-83/94 Leifer and Others [1995] ECR I-3231. 99 McLeod, Hendry, and Hyett, above n 28, at 149. 100 A Barav, ‘The division of external relations power between the European Economic Community and the Member States in the case law of the Court of Justice’ in C W A Timmermans and E L M Völker (eds), Division of powers between the European Communities and their Member States in the field of external relations (Deventer, Kluwer, 1981) 29 at 90. 101 On the broad application of the principle of loyal cooperation, see Blanquet, above n 32, at 306. 102 See eg Ruling 1/78 IAEA [1978] ECR 2151, paras 34–36; Opinion 2/91 ILO, above n 15, para 36; Opinion 1/94 WTO, above n 17, para 108; and Opinion 2/00 Cartagena Protocol on Biosafety, above n 17, para 18. 98

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Mixity and Coherence in EU External Relations in a differentiated fashion in view of the configuration of mixity, regardless of whether the respective competences of the Union and of the Member States are ‘co-existent’ or ‘concurrent’.103 Indeed, the Court’s decisions in the infringement cases mentioned earlier, which have arguably informed the subsequent jurisprudence on the legal effects of the duty of cooperation in the context of mixed agreements, make clear that the duty of genuine cooperation is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries … (emphasis added)104

The highlighted phrase thus points to an application of the duty of cooperation across the board, irrespective of whether the Member States have a shared or exclusive right to enter into obligations towards third countries. Moreover, the Court pointed out in MOX Plant, by reference to Dior, that the Member States and the Community institutions have an obligation of close cooperation in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement … (emphasis added)105

Seemingly, the phrase ‘under joined competence’ relates to the conclusion of the mixed agreement, rather than to ‘the commitments’ which have been ‘undertaken’ by Member States or the Union, but not necessarily by both jointly. That understanding is confirmed by the French version of the Court’s ruling, which reads: les Etats membres et les institutions communautaires sont tenus à une obligation de coopération étroite dans l’exécution des engagements qu’ils ont assumés en vertu d’une compétence partagée pour conclure un accord mixte. (emphasis added)

While the expression ‘en vertu d’une competence partagée’ (singular) may suggest that the commitments derive from that joined competence, the phrase highlighted in the above extract (and particularly the words ‘pour conclure’) nevertheless denotes that the joined competence relates to the conclusion of the mixed agreement: the expression thus indicates that the competence is joint for the purpose of concluding the overall agreement, but says nothing of the nature of

103 On different forms of mixed agreements, see chapters two and three in this volume by Marc Maresceau and Ramses Wessel respectively; A Rosas, ‘The European Union and mixed agreements’ in Dashwood and Hillion, above n 4, 200 at 206; M J F M Dolmans, Problems of mixed agreements: division of powers within the EEC and the rights of third States (The Hague, Asser Institute, 1985) 39–42; H G Schermers, ‘A typology of mixed agreements’ in D O’Keeffe and H G Schermers (eds), Mixed agreements (Deventer, Kluwer, 1983) 23; and P Allott, ‘Adherence to and withdrawal from mixed agreements’, ibid, 97 at 118–19. 104 See also in this sense, Case C-266/03 Commission v Luxembourg [2005] ECR I-4805, para 58; Case C-433/03 Commission v Germany [2005] ECR I-6985, para 64. 105 MOX Plant, above n 25, para 175.

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Christophe Hillion the various ‘engagements’ the latter includes, which may have been entered into by the Member States and/or by the EU institutions under their respective competences. The familiar Centro-Com ruling further substantiates that the duty of cooperation applies to Member States exercising their reserved competence. It may be worthwhile recalling the Court’s emphasis that: the powers retained by the Member States must be exercised in a manner consistent with Community law … [W]hile it is for the Member States to adopt measures of foreign and security policy in the exercise of their national competence, those measures must nevertheless respect the provisions adopted by the Community in the field of the common commercial policy … (emphasis added)106

While the Court employs the term ‘consistent’ in the first sentence to emphasise the Member States’ duty to comply with EU substantive rules when they exercise their ‘retained powers’,107 the italicised term ‘respect’ could be understood as more than avoiding legal contradictions. Beyond substantive compliance, it supposes, in fulfilment of the duty of cooperation based on the principle of loyal cooperation, that the Member States, while exercising their ‘national competence’, will refrain from taking actions which would compromise the effectiveness of EU provisions.108 The Court’s pronouncement reflects the general loyalty obligation, an obligation to facilitate the achievement of the Union’s tasks and abstain from measures that could jeopardise the attainment of its objectives.109 That the duty of cooperation applies beyond the sphere of Union competence to Member States exercising theirs is also warranted by a functional argument. Member States’ actions or inactions, in their domain of competence, may compromise the implementation of a mixed agreement in general, and affect as a result the rights and obligations of the Union in particular. Indeed, Member States’ interference with EU rights and obligations under the agreement could occur even where their action (or inaction) does not breach substantive Union rules; the principle of supremacy thus being of no help to rectify the situation. Such interference could notably occur in the context of a mixed agreement which, as often happens, contains no express declaration of competence between 106 Case C-124/95 Centro-Com [1997] ECR I-81, paras 25 and 27. Further, P Koutrakos, Trade, foreign policy and defence in EU constitutional law (Oxford, Hart Publishing, 2001) at 138–39; and annotation of C Vedder and H P Folz, ‘Case C-124/95, The Queen v HM Treasury and the Bank of England ex parte Centro-Com Srl, Judgment of 14 January 1997, [1997] ECR I-81. Case C-177/95, Ebony Maritime SA, Loten Navigation Co Ltd v Prefetto della Provincia di Brindisi and Others, Judgment of 27 February 1997, [1997] ECR I-1111’ (1998) 35 CMLRev 209. 107 The Court also said that ‘[e]ven if a matter falls within the power of the Member States, the fact remains that the latter must exercise that power consistently with Community law’ in Case C-466/98 Commission v UK [2002] ECR I-9427, para 41; also in Case C-221/89 Factortame and Others [1991] ECR I-3905, para 14 and Case C-264/96 ICI v Colmer [1998] ECR I-4695, para 19. 108 Case C-205/06 Commission v Austria and Case C-249/06 Commission v Sweden (3 March 2009, nyr). 109 Cremona, above n 28, 137 at 170; see also Cremona, above n 21. One may equally look at the Opinion of A-G Jacobs in the Centro-Com case, above n 106, paras 40–44.

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Mixity and Coherence in EU External Relations the EU and the Member States. The absence of a clear distribution of powers, which has some advantages from a Union viewpoint110 and which has been blessed by the Court of Justice,111 makes it difficult, particularly for third parties, to establish in a particular instance who on the EU side ought to be held responsible for non-compliance with specific provisions of a mixed agreement.112 In such a situation, the Court has suggested, albeit obliquely,113 that the principle should be that Union and Member States are jointly liable.114 That potential joint liability in turn points to an interest the EU and its Member States share in ensuring that the agreement is complied with in full, and in this sense the duty of cooperation plays a particular role.115 In principle, a clear division of competence, known in advance by the partner concerned, could help determine who, of the Union or the Member State(s), is to be blamed and sanctioned for the deficient fulfilment of obligations set out in a mixed agreement. In particular, only those parts of the agreement that relate to EU competence would be binding on the Union and thus engage its responsibility in case of non-compliance; the remainder of the provisions being binding only on the Member States, which would thus be held liable in case of defaulting implementation.116 Yet even if some specific obligations of a mixed agreement bind Member States only on the ground that internally the subject matter falls clearly within the purview of their competence, a Member State’s non-compliance with those

110 Mixity has been used precisely to avoid having to establish scrupulously the distribution of competences between the Community and the Member States in the context of a particular agreement; see eg Heliskoski, above n 10, at 11 and 69; Holdgaard, above n 8, at 160. See also Schermers, ‘The internal effect of Community treaty-making’ in D O’Keeffe and H G Schermers (eds), Essays in European Law and Integration (Deventer, Kluwer, 1982) 167 at 170, who points out that ‘mixity is a problem shifter’. Cp Opinion of A-G Tesauro in Hermès, above n 49, para 14, fn 13. 111 Ruling 1/78 IAEA [1978] ECR 2151, paras 112–13. 112 As Christian Tomuschat pointed out, if the EU and its Member States wilfully and purportedly refrain from formally publicising the demarcation line between their respective areas of jurisdiction, their partners cannot be expected to make the necessary inquiries themselves: C Tomuschat, ‘Liability for mixed agreements’ in O’Keeffe and Schermers, above n 103, 125 at 130. Further on this point, see chapter seventeen in this volume by Peter Olson. 113 See chapter ten in this volume by Pieter Jan Kuijper. 114 Case C-316/91 European Parliament v Council (EDF) [1994] ECR I-625, and Opinion of A-G Jacobs, para 69; Hermès, above n 49, para 24. Further on international responsibility for mixed agreements: Tomuschat, above n 112, 125; G Gaja, ‘The European Community’s rights and obligations under mixed agreements’ in O’Keeffe and Schermers, above n 103, 133 at 137ff; and R Kovar, ‘La participation des Communautés européennes aux conventions multilatérales’ (1975) 20 Annuaire Français de Droit International 903 at 916–17. 115 As summarised by Holdgaard: ‘the Community institutions and the Member States are under a duty of close cooperation because the Community area must be capable of fully complying with international obligations flowing from mixed agreements …’ (emphasis added); Holdgaard, above n 8, at 163. 116 A Rosas, ‘Mixed Union—Mixed Agreements’ in Koskenniemi, above n 23, 125 at 142; C Kaddous, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (Bâle, Helbing and Lichtenhahn—Brussels, Bruylant, 1998) 173–74; J Groux and P Manin, Les Communautés européennes dans l’ordre international (Luxembourg, Office des publications officielles des Communautés européennes, 1984) 150.

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Christophe Hillion obligations may still affect the Union, notwithstanding its lack of competence in the field(s) where the breach arises.117 The violation of one particular provision under a mixed agreement may impinge on the performance of some, if not all, other obligations set forth by the instruments. As compellingly argued by Heliskoski, the disputed conduct on the one hand and the consequences or implications thereof on the other hand, might well fall within distinct spheres of legal authorities.118 For instance, a Member State’s breach of foreign and defence policies obligations flowing from a mixed agreement could trigger the other party’s cross-retaliation in the form of a reduction or suspension of trade in goods manufactured in the defaulting State, thereby affecting the Union’s commercial policy. It thus becomes apparent that as a result of the joined character of the relationship they establish with a third party, the Union and the Member States’ actions are consequentially more interrelated than they would have been had the agreement not been concluded jointly. As a consequence, areas of EU and Member States competence which de jure are distinct and which can be exercised autonomously, may nevertheless be interconnected in effect, particularly, but not only, if a declaration of competence is not included in the agreement. In this light, it may be contended that Member States’ choice to turn a Union agreement into a mixed agreement by including provisions relating to their own powers, involving obligations which they alone can fulfil, entails as a corollary a responsibility vis-à-vis the Union. In particular, they not only commit themselves to perform all their obligations in good faith vis-à-vis the third party as a matter of international law, they also commit themselves vis-à-vis the Union, jointly liable for ensuring full compliance with the agreement’s obligations, to fulfil all obligations they have undertaken so as not to compromise the Union’s position and the achievement of its objectives under the agreement, and if need be to cooperate with it to address possible compliance deficiencies. This proposition builds on the principle established by the Court in its Kupferberg decision, that in implementing the provisions of a Community agreement, Member States fulfil an obligation of Community law as well.119 Such Member States’ responsibility towards the Union flows more generally from the requirement of solidarity

117

Opinion of A-G Tesauro in Hermès, above n 49, para 20. Heliskoski, above n 10, at 211. Gaja also points out that matters can be interlinked, even if apparently relating to clearly different legal authorities; see Gaja, above n 114, at 140. For a practical example, see C Hillion, The European Union and its East-European Neighbours —A Laboratory for the Organisation of EU External Relations (Oxford, Hart Publishing, forthcoming). 119 Case 104/81 Kupferberg [1982] ECR 3641, where the Court held in para 13 that ‘[i]n ensuring respect for commitments arising from an agreement concluded by the Community institutions, the Member States fulfil an obligation not only in relation to the non-member country concerned but also and above all in relation to the Community which has assumed responsibility for the due performance of the agreement.’ Further, C Kaddous, ‘Effects of international agreements in the EU legal order’ in Cremona and de Witte, above n 21, 292; I Cheyne, ‘Haegeman, Demirel and their progeny’ in Dashwood and Hillion, above n 4, 20. 118

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Mixity and Coherence in EU External Relations embodied in the principle of loyal cooperation which, as suggested earlier, is the constitutional basis of the duty of cooperation.120 Seen from this perspective, the duty to cooperate supplements the principle of supremacy, based on former Article 10 EC (now replaced in substance by Article 4(3) TEU), whereby Member States have to comply with their EU obligations under the EU agreement. It equally complements the ‘AETR effect’ crafted by the Court, also on the basis of former Article 10 EC, to forestall future conflict between Member States and EU international commitments.121 Not only should Member States refrain from acting inconsistently with the EU law aspects of the agreement, more generally they should also abstain from conduct in exercising their own powers that could impinge on the rights and obligations of the Union under that agreement. In practical terms, it is legally implausible to envisage infringement proceedings against a Member State for failure to comply with substantive obligations flowing from non-EU provisions of the mixed agreement.122 The case law seems to prevent such a course of action.123 One could nonetheless argue for enforcement proceedings against defaulting Member States for failure to comply with their obligation of ‘close cooperation [with the Union institutions] in fulfilling commitments undertaken by them under joint competence when they conclude a mixed agreement’, irrespective of the fact that their contentious action or inaction relates to their domain of competence.124 More specifically, and following earlier case law on the procedural obligations flowing from the duty of cooperation (eg MOX Plant), the Commission could start infringement proceedings against a Member State if, after having failed to comply with its obligations under the agreement, it did not cooperate actively with the EU institutions to try to reach a settlement to the dispute with the third party concerned,125 so as to bring an end to the damage suffered by the Union.

120

See above, section II.A. See in this respect Opinion 1/03 Lugano Convention [1982] ECR 3641; Case C-45/07 Commission v Greece (IMO) (12 February 2009, nyr). 122 Cp C-D Ehlermann, ‘Mixed agreements—A list of problems’ in O’Keeffe and Schermers, above n 103, 3 at 21, who went as far as to suggest that the Community should thus have the right to take preventative steps against the Member State whose action risks engaging the Community’s responsibility: ‘it would be unavoidable to allow the Community to use the infringement procedure in spite of the fact that the Member State acts within its sphere of competence.’ See also C Hillion and R A Wessel, ‘Restraining External Competences of EU Member States under CFSP’ in Cremona and de Witte, above n 21, 79. 123 Pre-Lisbon Enforcement proceedings have in principle been available only in relation to the application of EC law; see the broad interpretation of the Court in Case C-13/00 Commission v Ireland [2001] ECR I-2943; Case C-239/03 Commission v France (Etang de Berre) [2001] ECR I-2943; Case C-431/05 Merck Genéricos [2007] ECR I-7001. 124 Further, Timmermans, above n 23, at 239. 125 Further on dispute settlement, see chapter nine in this volume by Inge Govaere. 121

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Christophe Hillion 2.

EU institutions’ duty to cooperate when exercising EU exclusive competence

Having established that Member States are bound by the duty of cooperation when exercising their retained competence, the Court has also made it clear that the institutions, too, are compelled by the duty to cooperate with Member States, including when acting in areas where the Union is exclusively competent. At one level, the application of the duty to the institutions in relation to the Member States is based on the rationale of compliance that was discussed earlier: Member States should not suffer damage as a result of a deficient fulfilment by the Union of its obligations under the agreement.126 At another level, the Court has also suggested that certain conduct may be expected from the institutions in relation to the Member States on the basis of the duty of cooperation. This is particularly apparent in the IMO pronouncement.127 The Commission sued Greece on the ground that by submitting to the International Maritime Organisation (IMO) a proposal for monitoring the compliance of ships and port facilities with the requirements of Chapter XI-2 of 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’), the Hellenic Republic had failed to fulfil its obligations under former Articles 10 EC (now replaced in substance by Article 4(3) TEU), 71 EC and 80(2) EC (now Articles 91 and 100(2) TFEU). The Commission notably argued that by acting on an individual basis in an area in which the European Community enjoyed exclusive external competence, Greece undermined the ‘principle of a united external representation for the Community’, and thus acted in breach of Community law. In its defence, Greece contended that the Commission infringed Article 10 EC by refusing to include its proposal on the agenda for a meeting of the Maritime Safety Committee (Marsec Committee), chaired by the Commission’s representative. Relying on the AETR doctrine, the Court first held that as a result of the adoption of a Regulation on enhancing ship and port facility security,128 Greece could not, outside the framework of the EU institutions, assume obligations which might affect those rules or alter their scope. By submitting the contested proposal, it took an initiative likely to affect the provisions of the Regulation, and thus infringed its obligations under then Articles 10 EC (now replaced in substance by Article 4(3) TEU), 71 EC and 80(2) EC (now Articles 91 and 100(2) TFEU). The Court then turned to Greece’s contention that the Commission had failed to observe its duty of cooperation, and found that

126 In that, the application of the duty of cooperation to the institutions is particularly important in the WTO context. See in this respect, the contribution of Pieter Jan Kuijper in this volume. 127 Commission v Greece (IMO) above n 123; see also Case 22/70 Commission v Council (AETR) [1971] ECR 263. 128 Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security [2004] OJ L/129/6.

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Mixity and Coherence in EU External Relations in order to fulfil its duty of genuine cooperation under Article 10 EC, the Commission could have endeavoured to submit that proposal to the Maritime Safety Committee and allowed a debate on the subject. As is apparent from Article 2(2)(b) of the Standard rules of procedure, such a committee is also a forum enabling exchanges of views between the Commission and the Member States. The Commission, in chairing that committee, may not prevent such an exchange of views on the sole ground that a proposal is of a national nature.129

The Court thus acknowledges that the Commission is expected to cooperate with the Member States, including in areas of Union exclusive powers. However, it does it with circumspection. In particular, the Court makes it clear that the Commission is subject only to a ‘best endeavour’ duty which, in addition, appears not to be particularly imperative. In the words of the Court, it ‘could have endeavoured to’ submit the proposal to the Committee and allowed a debate (ie positive duty), while it ‘may not prevent’ an exchange of views ‘on the sole ground that a proposal is of a national nature’ (ie a negative duty). This cautious, if not restrained, formulation of the Commission’s responsibilities flowing from the duty of cooperation raises the question of whether, in effect, the duty is equally constraining whether it concerns the institutions or the Member States while exercising their own powers. The IMO ruling also suggests that even if the Commission’s failure to comply with the duty was established, the Member States would not be allowed to take autonomous measures in reaction to it and to get round it: [A]ny breach by the Commission of Article 10 EC 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, which, in a case such as the present, arise under Articles 10 EC, 71 EC and 80(2) EC. Indeed, a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by an institution of rules of Community law (see, by analogy, Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 20 and case law cited)130

In referring to Hedley Lomas, the Court indicates that the Member State’s allegation that the Commission fails to fulfil its duty to cooperate has to be established and addressed in accordance with relevant procedures set out by the Treaty. Thus the Member State would possibly have to bring proceedings for failure to act to the Court under Article 265 TFEU (ex Article 232 EC). If so, it would then have to establish the specific action the Commission would be expected to undertake, for the proceedings to stand any chance of success. A failure to cooperate would arguably be too vague,131 so that a clear procedural

129 130 131

Commission v Greece (IMO) above n 123, para 25. ibid, para 26. Eg Case 48/65 Lütticke [1966] ECR 19.

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Christophe Hillion obligation would most likely need to be invoked.132 The Court’s lax formulation of the Commission’s duties, mentioned above, suggests that this may be a difficult case to make, again raising the question of a possible imbalance in the application of the mutual duty of cooperation.

V.

CONCLUSION

On the basis on the general principle of loyal cooperation, the Court of Justice has articulated a specific duty of cooperation to foster harmony between the Union and the Member States when acting jointly on the international scene. In so doing, the Court is contributing towards enhancing the coherence and consistency of the external action and representation of the Union. It has been argued that the duty of cooperation plays an increasingly significant role in the law of mixed agreements. Its greater significance stems from its progressive legalisation and the elaboration of its normative content by the Court. While it has mostly entailed an obligation of conduct, the normative strength of which may vary depending on the specific form of mixity of the agreement at hand, the duty of cooperation may also involve, albeit exceptionally, an obligation of result. Hence, Member States and EU judicial authorities may be called upon to ensure uniformity in the application of provisions of the agreement, where those have a procedural nature and are capable of applying at national and Union levels. The Court has also articulated enforceable procedural obligations (eg of consultation and information) that bind Member States and EU institutions, including where they exercise their powers. Such procedural obligations, which are still being elaborated, entail that while exercising their recognised powers, Member States and institutions should be aware and respectful of each other’s undertakings, if not responsible for facilitating each other’s tasks ultimately to promote the common good. The Court thus fosters an attitude of mutual support, rather than an instinctive territoriality reflex in the EU–Member States interactions.133 That apparent increasing jurisprudential emphasis on cooperation as a contribution to consistency and coherence in the organisation of the EU external relations counter-balances the traditional competence-distribution case law. It may signal lesser judicial apprehension, and perhaps more acceptance of the plurality that characterises the EU posture on the international stage. The Court’s changing views on the function of the duty of cooperation attest to this. While 132 See, in this respect, Case C-205/06 Commission v Austria (3 March 2009, nyr), at para 44; and Case C-249/06 Commission v Sweden (3 March 2009, nyr), at para 44. Many thanks to Joni Heliskoski for drawing my attention to this point. 133 This was less evident in the EC–EU interactions prior to the entry into force of the Lisbon Treaty, as testified by the Court’s ECOWAS judgment. Further, C Hillion and R A Wessel, ‘Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuziness?’ (2009) CMLRev 551, and C Hillion, ‘Mixity and Coherence in EU External Relations’ CLEER Working Papers Nr 2009/2, Centre for the Law of EU external Relations, section IV.C.

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Mixity and Coherence in EU External Relations often conceived of as a vehicle to achieve ‘unity’—otherwise limited in view of the constitutional limitations to EU exclusive competence—the duty of cooperation is being reorientated to pursue consistency and coherence in the intrinsically multifarious action and international representation of the Union. In this author’s view, such a development is more in line with, and certainly more apposite to, the inherent features of the Union’s system of external relations. The latter’s functioning and ultimate efficiency depend less on its successful obliteration of plurality through exclusivity, than on its aptitude to live with and exploit the fortune of diversity.134

134 The acceptance of plurality and the increasing focus on coordination rather than centralisation is seemingly at work also in the American federalism; see, eg, R B Ahdieh, ‘Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination’, Public Law & Legal Theory Research Paper No 08–184, Columbia University Law School (available at http://ssrn.com/ abstract=1272967).

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6 Interpretation of Mixed Agreements PANOS KOUTRAKOS*

I.

I

INTRODUCTION

N RELATION TO the jurisdiction of the Court of Justice to interpret mixed agreements, it has been argued that:

[whilst] the case-law [is] copious, … successive developments, far from offering a smooth passage, have constructed a long and winding path, whose complex route demands certain adjustments in order to help its confused users find their way.1

This argument was made by the late Advocate-General Colomer in his Opinion in Case C-431/05 Merck. In the same Opinion, he refers to the ‘deficiencies’ of the relevant case law, as well as to the latter’s ‘illogical’ consequences.2 This chapter will examine whether this statement is borne out by the case law of the Court of Justice. The analysis is structured in three parts. First, it will examine the origin of the Court’s approach to its jurisdiction. Secondly, it will set out the parameters of the wide construction of its jurisdiction in the context of the preliminary reference procedure. Thirdly, it will outline its approach as developed in the context of enforcement proceedings. Lastly, this chapter will analyse the above developments in the light of the more recent judgment in Merck. Throughout this analysis, the threads which bring together the different strands of the Court’s case law and the quest for identifying the Community interest, what is now the Union interest, as well as the methods which would serve it best, will be examined.

* Many thanks to Christophe Hillion. The usual disclaimer applies. 1 Case C-431/05 Merck Genéricos—Produtos Farmacêuticos Lda v Merck & Co Inc, Merck Sharp & Dohme Lda [2007] ECR I-7001, para 33. 2 Ibid, paras 60 and 59 respectively.

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Interpretation of Mixed Agreements II.

THE ORIGIN

The question of the existence and the limits of the jurisdiction of the Court of Justice to interpret mixed agreements was not addressed by the Court until the mid-1990s. The Court avoided the question of the scope of its jurisdiction to interpret mixed agreements in a number of cases. These included Haegeman, in relation to the prohibition on customs duties set out in the Association Agreement with Greece,3 Razanatsimba, on the treatment of nationals and companies of the Member States and the African, Carribean and Pacific Group States under the First Lomé Convention,4 and Sevince5 and Kus,6 in relation to decisions of the Association Council established under the Association Agreement with Turkey on free movement of workers. It is a testament to the ability of the Community legal order to adjust pragmatically to political realities that questions central to one of the most important aspects of its external relations should have been avoided for so long without undermining either the development of that system, or the capacity of the EC to comply with its international law obligations. In this respect, the approach of the Court of Justice was not dissimilar to that it followed in relation to the effects of World Trade Organisation rules under EC law.7 The first time the Court’s jurisdiction to interpret mixed agreements was challenged expressly was in Demirel.8 The German and United Kingdom Governments argued that the Court did not have jurisdiction to rule on the interpretation of the provisions the Association Agreement with Turkey on free movement of workers. They argued that such issues fell within the exclusive competence of the Member States. The Court ruled that the latter was not the case:9 Since the agreement in question is an association agreement creating special, privileged links with a non-member country which must, at least to a certain extent, take part in the Community system, Article [217 TFEU, ex Article 310 EC] must necessarily empower the Community to guarantee commitments towards non-member countries in all the fields covered by the Treaty. Since freedom of movement for workers is, by virtue of Article [45 TFEU, ex Article 39 EC] et seq of the EEC Treaty, one of the fields covered by that Treaty, it follows that commitments regarding freedom of movement fall within the powers conferred on the Community by Article [217 TFEU, ex Article 310 EC]. Thus the question whether the Court has jurisdiction to rule on the

3

Case 181/73 Haegeman v Belgium [1974] ECR 449. Case 65/77 Razanatsimba [1977] ECR 2229. 5 Case C-192/89 Sevince v Staatsecretaris van Justitie [1990] ECR I-3461. 6 Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781. 7 See Case C-183/95 Affish [1997] ECR I-4315; Joined Cases C-364/95 and 365/95 T Port GmbH & Co v Hauptzollampt Hamburg-Jonas [1998] ECR I-1023; Case C-53/96 Hermès International v FHT Marketing [1998] ECR I-3603. 8 Case 12/86 Demirel v Stadt Schwabisch Gnuend [1987] ECR 1545. 9 Ibid, paras 9–11. 4

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Panos Koutrakos interpretation of a provision in a mixed agreement containing a commitment which only the member states could enter into in the sphere of their own powers does not arise. Furthermore, the jurisdiction of the Court cannot be called in question by virtue of the fact that in the field of freedom of movement for workers, as Community law now stands, it is for the Member States to lay down the rules which are necessary to give effect in their territory to the provisions of the Agreement or the decisions to be adopted by the Association Council. As the Court held in … Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, in ensuring respect for commitments arising from an agreement concluded by the Community institutions the Member States fulfil, within the Community system, an obligation in relation to the Community which has assumed responsibility for the due performance of the agreement.

The above extract is interesting for three main reasons. First, it leaves open the question of the Court’s jurisdiction by focusing on the issue of competence. Secondly, it is confined to the argument put forward by the German and British Governments about the nature of the competence of Member States in the area, and does not address at all the issue of the existence of such competence. Thirdly, on the other hand, by referring to Kupferberg, a case about the tax provisions of the Free Trade Agreement with Portugal, the Court transposes its case law on purely Community agreements to that of mixed agreements, and then relies upon it in order to stress the duty of Member States towards the Community to ensure respect for commitments assumed by the latter.10 III.

THE PRINCIPLE

Subsequent case law addressed the question of the Court’s jurisdiction and its scope in a more direct way. In Case C-53/96 Hermès,11 the Court received a preliminary reference from The Netherlands about the interpretation of Article 50(6) of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). This concerns the enforcement of trade marks by means of provisional measures and provides that, upon request by the defendant, such measures shall be revoked, or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period. The duration of the latter is to be determined by the judicial authority ordering the 10 On the implications of the judgment, see amongst others A F Gagliardi, ‘The Right of Individuals to Invoke the Provisions of Mixed Agreements before the National Courts: A New Message from Luxembourg?’ (1999) 24 ELRev 276, 286; C Kaddous, Le droit des relations extérieures dans la jurisprudence de la Cour de justice des Communautés européennes (Munich: Helbing & Lichtenhahn, 1998) 76–78; A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague: Kluwer Law International, 1998) 125, 140–41. 11 Case C-53/96 Hermès International v FHT Marketing [1998] ECR I-3603.

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Interpretation of Mixed Agreements measures or, in the absence of such a determination, should not exceed 20 working days or 31 calendar days, whichever is the longer. Three Governments intervened and challenged the Court’s jurisdiction.12 They argued that the rule in question fell beyond the Community’s competence, as the Court had ruled in Opinion 1/94 that the Community was not exclusively competent to conclude TRIPs because, amongst other reasons, no general common rules on the protection of intellectual property rights had been adopted.13 An interesting feature of this case was that the subject matter of the action before the referring court was a national, rather than a Community, trade mark. However, this did not prevent the Court from concluding that the interpretation of Article 50(6) TRIPs in that case fell within the scope of its jurisdiction. This conclusion was substantiated on the basis of a number of interrelated factors. First, the Court referred to the absence of any reference in the EC Decision concluding the WTO Agreements to the division of competence between the Community and the Member States.14 Secondly, it pointed out that the TRIPs provision which it had been asked to interpret was of a procedural nature and would be applicable to Community trade marks too, the relevant EC instrument having been adopted a month prior to the signing of the WTO Agreement by the Community.15 After all, Article 99 of Regulation 40/94 provides for the adoption of provisional measures for the protection of the Community trade mark. The Court then ruled that16 since the Community is a party to the TRIPs Agreement and since that agreement applies to the Community trade mark, the courts referred to in Article 99 of Regulation No 40/94, when called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under a Community trade mark, are required to do so, as far as possible, in the light of the wording and purpose of Article 50 of the TRIPs Agreement It follows that the Court has, in any event, jurisdiction to interpret Article 50 of the TRIPs Agreement.

The national nature of the subject matter of the dispute before the referring court, that is a trade mark protected under The Netherlands law, was dismissed as immaterial on the basis of the autonomy of national courts to determine the questions referred to the Court of Justice under Article 234 EC (now Article 267 TFEU), as well as the Community interest: in relation to the latter, it was pointed out that17

12

These were the French, The Netherlands and the UK Governments. Opinion 1/94 WTO [1994] ECR I-5267, at para. 104, where reference was made, exceptionally, to Council Reg 3842/86 laying down measures to prohibit the release for free circulation of counterfeit goods [1986] OJ L/357/1. 14 Council Decision 94/800, [1994] OJ L/336/1. 15 Council Reg 40/94 on the Community trade mark [1994] OJ L/11/1. 16 Hermès, above n 11, paras 28–29. 17 Ibid, para 32. 13

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Panos Koutrakos where a provision can apply both to situations falling within the scope of national law and to situations falling within the scope of Community law, it is clearly in the Community interest that, in order to forestall future differences of interpretation, that provision should be interpreted uniformly, whatever the circumstances in which it is to apply . . .

Whilst the judgment in Hermès construed the jurisdiction of the Court to interpret mixed agreements in broad terms, it was not clear quite how broad this was.18 After all, there were a number of features in Hermès which rendered its legal and factual context quite specific: not only had the Community adopted legislation within the area covered by the provision of the agreement in question prior to the signing of the latter, but that provision was also of a procedural nature which could apply to the relevant Community measure in the future, and the conclusion of the agreement was not accompanied by an allocation of the Community’s competence and that of its Member States. In the absence of any of these features, would the jurisdiction of the Court be maintained? And even if all these features were present, would any variation affect its scope? For instance, would the Court’s jurisdiction exist even in the presence of a Community (now Union) measure which, whilst within the scope of the relevant provision of the mixed agreement broadly understood, covered a subject matter distinct from that in the case referred under Article 267 TFEU? Would it exist if there was no secondary measure at the time of the reference but the adoption of a legislative proposal was pending?19 And what if the provision of a mixed agreement falls within the exclusive competence of the Member States? The subsequent case law sought to shed some light on this uncertainty. In Joined Cases C-300/98 and 392/98 Parfums Christian Dior,20 the Court of Justice dealt with two references from The Netherlands (one from the Hoge Raad) about, again, Article 50 TRIPs and its application to trade marks and industrial designs disputes. In relation to the latter area, the Community had not adopted any secondary measure. One of the questions referred from the Hoge Raad was precisely whether the jurisdiction of the Court to interpret Article 50 TRIPs also extended to its provisions in cases where no trade marks were involved.

18 See A von Bogdandy, annotation on Case C-53/96 Hermès, (1999) 36 CMLRev 663; A Dashwood, ‘Preliminary Rulings on the Interpretation of Mixed Agreements’ in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law— Liber Amicorum in Honour of Lord Slynn of Hadley, vol 1 (The Hague, Kluwer, 2000), 167; J Heliskoski, ‘The Jurisdiction of the European Court of Justice to Give Preliminary Rulings on the Interpretation of Mixed Agreements’ (2000) 69 Nordic Journal of International Law 395. 19 In his Opinion in Joined Cases 300/98 and 392/98 Parfums Christian Dior [2000] ECR I-11307, A-G Cosmas argued that, ‘in the context of Article [267 TFEU, ex Article 234 EC] of the Treaty, to extend the Court’s interpretative jurisdiction to TRIPs provisions relating to areas in which the (potential) Community competence has not yet been exercised would constitute pursuit of a policy of judge-made law in conflict with the constitutional logic of the Treaty and would be difficult to justify on grounds of expediency’ (para 51). 20 Joined Cases 300/98 and 392/98 Parfums Christian Dior [2000] ECR I-11307.

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Interpretation of Mixed Agreements The starting point for the judgment was the articulation of the Court’s jurisdiction in broad terms21: TRIPs … was concluded by the Community and its Member States under joint competence … It follows that where a case is brought before the Court in accordance with the provisions of the Treaty, in particular Article [267 TFEU, ex Article 234] thereof, the Court has jurisdiction to define the obligations which the Community has thereby assumed and, for that purpose, to interpret TRIPs.

What is noticeable about this extract is the absence of any reference to the existence of secondary Community rules. In fact, the judgment reads as if Hermès was merely an example where the Court’s jurisdiction would be exercised. Indeed, the Court goes on to point out that in particular, the Court has jurisdiction to interpret Article 50 TRIPs in order to meet the needs of the courts of the Member States when they are called upon to apply national rules with a view to ordering provisional measures for the protection of rights arising under Community legislation falling within the scope of TRIPs.22

It then held as follows: 37.

Since Article 50 of TRIPs constitutes a procedural provision which should be applied in the same way in every situation falling within its scope and is capable of applying both to situations covered by national law and to situations covered by Community law, that obligation requires the judicial bodies of the Member States and the Community, for practical and legal reasons, to give it a uniform interpretation.

38.

Only the Court of Justice acting in cooperation with the courts and tribunals of the Member States pursuant to Article [267 TFEU, ex Article 234 EC] of the Treaty is in a position to ensure such uniform interpretation.

39.

The jurisdiction of the Court of Justice to interpret Article 50 of TRIPs is thus not restricted solely to situations covered by trade-mark law.

The ruling in Dior not only confirms the broad scope of the Court’s jurisdiction, it also anchors it even more firmly to the need for uniformity of interpretation. This is the thread which links this judgment with Hermès where, it may be recalled, reference was also made to the Community interest. However, whilst there was no doubt left as to the wide scope of its jurisdiction, the Court also makes it clear that that scope is not without limits. In fact, it holds that it is for the national courts to decide whether Article 50 of TRIPs grants rights to individuals upon which they may rely before national courts in areas where the Community ‘has not yet legislated and which consequently falls within the 21

Ibid, para 33. Ibid, para 34 (emphasis added). It goes on to point out that ‘likewise, where a provision such as Article 50 of TRIPs can apply both to situations falling within the scope of national law and to situations falling within that of Community law, as is the case in the field of trade marks, the Court has jurisdiction to interpret it in order to forestall future differences of interpretation’ (para 35). 22

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Panos Koutrakos competence of the Member States’23; if, on the other hand, the Community has already legislated in a field to which TRIPs applies, the national courts must follow the Court’s case law on the effects of WTO rules following the Portuguese Textiles judgment,24 and interpret national law as far as possible in the light of the wording and purpose of Article 50 of TRIPs.25 The role of national courts was even more pronounced in the judgment in Case C-89/99 Schieving-Nijstad, where the Court set out a number of specific issues regarding the interpretation of Article 50(6) TRIPs which they had to ascertain.26 However, the delineation of Community and national competence is an exercise which national courts are bound to find fraught with problems. This is illustrated in Case C-431/05 Merck, where the referring court argued that it was for the Court of Justice to determine whether Article 33 TRIPs could be invoked by individuals before national courts, whereas the Court concluded that that was, in fact, a task for national courts.27 There are two further issues which the case law examined in this section raises. The first is about the requirement of uniform interpretation which gives rise to the Court’s jurisdiction to determine the effect of a provision of a mixed agreement in situations concerning national law.28 The ruling in Hermès, as well as those in Dior and Schieving-Nijstad, concerns a procedural provision of TRIPs, capable of applying both to situations covered by national law and to situations covered by Community law; it is this characteristic which, according to the Court, gives rise to the requirement of uniform interpretation and, therefore, to the jurisdiction of the Court of Justice in the context of the preliminary reference procedure. However, this does not necessarily follow: uniform interpretation is a requirement which should govern the application of Community (now Union) law, and any discrepancy between the latter and national law governing situations beyond the scope of Union law is not necessarily problematic. After all, provisions of domestic law are relevant in terms of their compatibility with Union law only in cases with an intra-Union element. The cases to which the Court refers in order to substantiate its line of reasoning do not necessarily support its conclusion either29: it is one thing for a Member State to adopt a solution of Union law within its domestic legal order and then to make a reference to the Court of

23

Ibid, para 48. Case C-140/96 Portugal v Council [1999] ECR I-8395. 25 Dior, above n 20, para 47. 26 Case C-89/99 Schieving-Nijstad vof and Others and Robert Groeneveled [2001] ECR I-5851. 27 See the analysis below in section V. 28 In his Opinion in Case C-89/99 Schieving-Nijstad vof and Others and Robert Groeneveled [2001] ECR I-5851, A-G Jacobs pointed out that ‘it is not easy to understand why Community law governs the effects of Article 50 of the TRIPs Agreement not only where a Community trade mark is involved but also in situations concerning national trade marks’ (para 40). 29 In Hermès, above n 11, para 32, reference is made to Case C-130/95 Giloy v Hauptzollamt Frankfurt am Main-OSt [1997] ECR I-4291, para 28, and Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen [1997] ECR I-4161, para 34. 24

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Interpretation of Mixed Agreements Justice as to its interpretation, and quite another for the Court to hold that the existence of Union law, even if not applicable in the case before it, would bring the dispute within its jurisdiction. The second issue raised by the above line of cases is the conclusion about the determination of the direct effect of provisions set out in TRIPs. This does not necessarily follow either from the preceding line of reasoning set out in the Dior judgment, or from the logic of interpretation. The conclusion about direct effect presupposes a distinction between interpretation and effect of the provision of a mixed agreement. However, the effect of such a provision, and in particular whether it may be invoked before national courts, is in itself a matter of interpretation. Quite what it is that should make direct effect prevail over the requirement of uniform interpretation is not clear, all the more so in the light of the central position of the latter in the construction of the Court’s jurisdiction in broad terms. IV.

JURISDICTION TO INTERPRET MIXED AGREEMENTS IN THE CONTEXT OF ENFORCEMENT PROCEEDINGS

The issue of the interpretation of mixed agreements and the scope of the Court’s jurisdiction has also arisen in a number of enforcement actions brought by the Commission under Article 226 EC (new Article 258 TFEU). In the Berne Convention case,30 the problem was the failure by Ireland to update its copyright law and ratify the Berne Convention for the Protection of Literary and Artistic Work in accordance with Article 5 of Protocol 28 of the European Economic Area (EEA) Agreement. The United Kingdom Government intervened and challenged the jurisdiction of the Court on the basis of the mixed character of the EEA Agreement. In particular, it argued that only matters in relation to which the Community had adopted harmonising measures could be subject to the Court’s review. Therefore, it alleged that the Berne Convention was a matter of international law, it fell within national competence and its application was excluded from the scope of the Court’s jurisdiction. This objection was dismissed as inadmissible, because no such argument was advanced by the defending party, that is Ireland.31 In its judgment, the Court assimilated mixed agreements to purely Community agreements. It did so by relying upon previous pronouncements made in the context of association agreements in Demirel.32 It then went on to conclude that the Berne Convention falls ‘in large measure’ within the scope of EC competence. It is interesting that this statement is substantiated in only one paragraph, with reference to a handful of related areas in which the EC has legislated, and with no reference to specific 30 31 32

Case C-13/00 Commission v Ireland [2002] ECR I-2943. See Art 37 of the EC Statute of the Court of Justice. Above n 8, para 9.

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Panos Koutrakos secondary measures and no attempt to define the extent to which the mixed character of the Convention might affect the nature of the Community duty imposed on the Member States. Indeed, the Court’s assessment of the extent to which there is coincidence between the subject matter of the Convention and EC law is confined to affirmative statements ‘in large measure’ and ‘to a very great extent’.33 This broad-brush approach is not only bold in its implications, but also regrettable in its lack of clarity and the generalisations which it appears to introduce. Quite apart from the way in which references to secondary measures are made, the Court’s reading of the extract from Demirel in order to assimilate mixed agreements to purely Community agreements appears rather strained. Be that as it may, this approach may be understood in the light of the specific circumstances of the action. On the one hand, the Irish Government had accepted the existence of the violation and had made it clear that national law acceding to the Convention had been at an advanced stage of scrutiny before the Irish Parliament. On the other hand, more crucially, the action was about adherence: as the Convention was indivisible, the failure of a Member State to accede to it was clearly problematic in so far as it prevented the Community from adhering to it. However, this argument, whilst put forward by Advocate-General Mischo,34 was ignored by the Court. An equally broad approach was adopted in the subsequent judgment in Étang de Berre.35 France had not adopted measures to prevent, abate and combat heavy and prolonged pollution of a saltwater marsh named Étang de Berre, a failure which the Commission alleged to constitute a violation of the Convention for the Protection of the Mediterranean Sea against Pollution. The objection to the Court’s jurisdiction put forward by the French Government was dismissed. Delivering the judgment without a submission from an Advocate-General,36 the Court referred verbatim to the judgment in Berne Convention. Again, the subject matter of the Convention was deemed ‘without doubt [to] cover a field which falls in large measure within Community competence’.37 This is substantiated by a very general statement about environmental protection and how it is ‘in very large measure regulated by Community legislation, including with regard to the protection of waters against pollution’, with references to measures concerning urban waste-water treatment, the protection of waters against pollution caused

33

Above n 30, paras 16 and 17 respectively. Ibid, para 50 of his Opinion. This argument was also made by A-G Maduro in Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635, para 30. 35 Case C-239/03 Commission v France [2004] ECR I-9325. 36 In accordance with Art 20, subpara 5 of the Statute of the Court of Justice, ‘[w]here it considers that the case raises no new point of law, the Court may decide, after hearing the Advocate General, that the case shall be determined without a submission from the Advocate General’. 37 Above n 35, para 27. 34

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Interpretation of Mixed Agreements by nitrates from agricultural sources, and the establishment of a framework for Community action in the field of water policy.38 The Court went on to conclude as follows: Since the Convention and the Protocol thus create rights and obligations in a field covered in large measure by Community legislation, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.39

It is noteworthy that the Court should refrain from addressing a specific issue raised by the French Government, according to which there was no Community law regarding discharges of fresh water and alluvia into the marine environment, ie the specific obligations which France was alleged to have violated. Instead, this fact is not disputed by the Court, which merely pointed out that it ‘is not capable of calling that finding [ie the existence of the Community interest] into question’.40 However, there seems to be a leap between the question which the Court set out to answer in order to define its jurisdiction and the one which it ended up answering: the former is whether the subject matter of the mixed agreement in question fell within the scope of EC law; the latter is whether the subject matter of the agreement was covered by EC legislation. This latter question is narrower: in the presence of secondary legislation, there can be no doubt that the subject matter of the agreement would fall within the scope of EC law. The question which remains is whether the conclusion would have been different in the absence of Community legislation. The most recent episode in this line of enforcement actions where the jurisdiction of the Court was in issue was the MOX Plant case.41 The subject matter of these enforcement proceedings was the initiation by Ireland of proceedings against the United Kingdom in the context of the United Nations Convention on the Law of the Sea (UNCLOS), a Convention to which both the Community and the Member States are parties. In particular, Ireland had objected to the construction of MOX Plant, a facility designed to recycle plutonium from spent nuclear fuel, at Sellafield, and argued that the British Government violated substantive provisions set out in UNCLOS regarding the protection and preservation of the marine environment, as well as authorisation and notification procedures. The Commission, on the other hand, viewed the initiation of proceedings by Ireland against another Member State beyond the Community legal framework as a violation of the duty of cooperation under Article 10 EC (new Article 4(3) TEU) and the exclusive jurisdiction of the Court of Justice under Article 292 EC (new Article 344 TFEU).

38 39 40 41

Ibid, para 28. Ibid, para 29. Ibid, para 30. Case C-459/03 Commission v Ireland [2006] ECR I-4635.

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Panos Koutrakos In the vein of the argument by the French Government in Étang de Berre, the Irish Government argued that no EC legislation at all existed in relation to the discharge of radioactive substances into the marine environment and notification and cooperation in the area of the transport of such substances by sea. In addition, it argued that no secondary EC rules featured any rule comparable to that laid down in the Convention. The starting point for the judgment is the examination of whether the UNCLOS provisions relied upon by Ireland fall within the scope of EC competence. The judgment is underpinned by a clear emphasis on the existence of EC competence, rather than its nature: the Court points out that the 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.42

The implications are clear43: 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 in question 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 level, which, by reason of that fact, are not likely to be affected.

The Court then sets out to ascertain whether, by concluding UNCLOS, the Community chose to exercise its non-exclusive competence in the area of marine conservation. In doing so, it refers to two sources, namely, the legal basis of the Council Decision concluding UNCLOS on behalf of the Community44— ie inter aliea ex Article 175 new Article 186 TFEU)—and the Declaration of Competence submitted by the Community to UNCLOS and annexed to Council Decision 98/392. This states that the prevention of marine pollution falls within the Community’s exclusive competence only to the extent that such provisions of UNCLOS or implementing legal instruments affect common rules established by the Community; however, when Community (now Union) rules exist but are not affected, for instance in cases of minimum standards rules, the Member States have competence without prejudice to the Community’s competence to act in this field. On the basis of the above, the Court points out that45

42 43 44 45

Ibid, para 93. Ibid, paras 94–95. Council Decision 98/392, [1998] OJ L/179/1. MOX Plant, above n 41, para 108.

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Interpretation of Mixed Agreements It follows that, within 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.

The Court then goes further and looks at the appendix to the Declaration setting out the Community acts which refer to matters governed by UNCLOS and which the Court views as ‘a useful reference base’.46 With references to Directive 85/337 on environmental assessment,47 Directive 93/75 on minimum requirements for vessels carrying dangerous or polluting goods48 and Directive 90/313 on the freedom of access to information about the environment,49 the Court concludes that50 the matters covered by the provisions of the Convention relied on by Ireland before the Arbitral Tribunal are very largely regulated by Community measures, several of which are mentioned expressly in the appendix to [the] declaration [of Community competence attached thereto].

Using a different formulation, this is reaffirmed further down in the judgment by a statement that the UNCLOS provisions relied upon 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’.51 The MOX Plant case has attracted considerable attention.52 For the purposes of this analysis, it is worth pointing out that the specific legal and factual framework of this case may explain the conclusion reached by the Court: on the one hand, there was a Declaration of Competence which referred to specific EC measures, the interpretation of which the Irish Government invoked before the UNCLOS bodies; on the other hand, Article 282 UNCLOS expressly enables the parties to deviate from compliance with the enforcement procedures set out in UNCLOS and, instead, to submit a dispute concerning the interpretation or application of the Convention to a procedure set out in a general, regional or bilateral agreement that entails a binding decision. However, the line of reasoning followed by the Court raises two issues. First, the emphasis on whether the Community had elected to exercise its competence

46

Ibid, para 109. [1985] OJ L/175/40. 48 [1993] OJ L/247/19. 49 [1990] OJ L/158/56. 50 MOX Plant, above n 41, para 110. 51 Ibid, para 120. 52 See M Bronckers, ‘The relationship of the EC Court with Other International Tribunals: Non-Commital, Respectful or Submissive?’ (2007) 44 CMLRev 601; R Churchill and J Scott, ‘The Mox Plant Litigation: The First Half-Life’ (2004) 53 International and Comparative Law Quarterly 643; N Lavranos, ‘The scope of the exclusive jurisdiction of the Court of Justice’ (2007) 32 ELRev 83; N Lavranos, ‘The MOX Plant and Jzeren Rijn Disputes: Which Court Is the Supreme Arbiter?’ (2006) 19 Leiden Journal of International Law 249. 47

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Panos Koutrakos when it concluded UNCLOS is problematic. There are three main reasons for this. To begin with, it conflates the position of the Community and the Member States towards the third parties regarding the implementation of, and the ensuing responsibility under, the UNCLOS rules with the integrity of the Community legal order and the exclusive jurisdiction of the Court of Justice—the former is external, whereas the latter is internal to the Community legal order. Put differently, whether the Community has exercised its non-exclusive competence under the UNCLOS provisions is a question which is narrower to whether Ireland violated its EC Treaty obligations by submitting a dispute against another Member State beyond the EC legal framework.53 After all, a Member State is under a duty not to violate Community (now Union) law even in areas which fall within the sphere of their competence. This is the case in relation to areas of activity as diverse as foreign policy,54 the organisation of the armed forces,55 the organisation of national health care systems,56 and criminal law.57 The second reason which makes the emphasis on the exercise of the Community competence in MOX Plant problematic is that it appears to be at odds with the substance of the judgment. Indeed, the existence of Community legislation, which the Court deems indicative of the exercise of the Community’s competence, in fact suggests that the dispute between Ireland and the United Kingdom falls within the scope of Community law. It is puzzling that the Court should choose to view the matter from this angle, when the facts of the case, and in particular the reliance upon EC secondary measures by the Irish Government before the UNCLOS tribunal, made it very clear that what was at stake was the scope of EC law. Therefore, there appears to be a disjunction between the question which the judgment sets out to address, and which it views as central to the dispute upon which it is called to adjudicate, and the method pursuant to which it chose to address it, as well as the conclusion to which this led. A third problem is raised by the heavy reliance in the judgment upon the declaration of competence. Whilst their objective is to enable the Union’s partners to clarify issues of delineation of competence between the Union and the Member States, and consequently issues of responsibility, declarations of competence may be quite unhelpful. In his Opinion in MOX Plant, AdvocateGeneral Maduro refers to the ‘lack of clarity and elegance’ which characterises the

53 In this vein, 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—Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 125, 150–52. 54 Case C-125/95 The Queen, ex p Centro-Com/HM Treasury and Bank of England [1997] ECR I-81, para 27. 55 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 MLR 759; and M Trybus, European Union Law and Defence Integration (Oxford, Hart Publishing, 2005) ch 9. 56 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. 57 Case C-226/96 Criminal Proceedings against Lemmens [1998] ECR I-3711.

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Interpretation of Mixed Agreements declaration attached to UNCLOS.58 In fact, declarations of competence may prove to be a distinctly unreliable yardstick, not only for third parties but also for Member States seeking guidance as to how to exercise their international law rights and comply with their relevant duties in accordance with their Union law obligations.59 These include statements aiming to outline in general terms the state of the law regarding the existence and nature of Community (now Union) competence, as well as to convey the dynamic and incremental nature of that competence.60 Considering that the principles underpinning the scope, effects and implications of the existence and exercise of Union competence are still a long way from being settled, it is quite a challenge to expect the third parties to which they are addressed to be able to navigate their way through the Union’s declarations of competence.61

V.

THE MORE RECENT TWIST

The latest episode in the saga examined in this chapter is marked by the judgment which the Grand Chamber delivered in Case C-431/05 Merck Genéricos in September 2007.62 This reference from the Portuguese Supreme Court was about the effect of Article 33 TRIPs, which provides that patents are protected for a minimum period of 20 years from the filing date. Whilst the Portuguese Industrial Property Code, as amended in June 1995, provided for a 20-year period of protection, it also stipulated that patents filed before the entry into force of that provision were protected for 15 years, a period stipulated under prior law. The claimant in the main proceedings sold a pharmaceutical product under the trade mark ‘Enalapril Merck’. This was claimed to be the same as a product under the trade mark ‘Renitec’ and was sold at considerably lower prices. The patent holder of the latter product brought an action against Merck Genéricos, arguing that selling its product without an authorisation constituted a violation of its patent right. Whilst Merck Genéricos argued that the patent protection had expired in the light of the expiration of the 15-year period set out in Portuguese law for patents issued before June 1995, the patent holder counter-argued that 58

MOX Plant, above n 41, para 30 of his Opinion. B De Witte, ‘Too much constitutional law in the European Union’s Foreign Relations?’ in Cremona and B De Witte, above n 53, 3 at 14–15; and P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’, ibid, 171 at 183. 60 See, for instance, the Declaration on competence submitted by the Community on its Accession to the Hague Conference on Private International Law set out in Annex II to Council Decision 2006/719/EC [2006] OJ L/297/1 at 5, and the one submitted in matters covered by the Convention establishing a Customs Cooperation Council annexed to Council Decision 2007/668/EC [2007] OJ L/274/11 at 13–14. 61 See chapter seventeen by Olson in this volume. 62 Case C-431/05 Merck Genéricos—Produtos Farmacêuticos Lda v Merck & Co Inc, Merck Sharp & Dohme Lda [2007] ECR I-7001. 59

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Panos Koutrakos that provision was contrary to Article 33 TRIPs and that its patent was protected under the 20-year minimum rule set out therein. The latter claim was accepted by the Court of Appeal but was further challenged by Merck Genéricos before the Supreme Court, arguing that Article 33 TRIPs could not have direct effect. The referring court asked two questions: Does the ECJ have jurisdiction to interpret Article 33 TRIPs? If it does, may this provision be invoked in disputes between individuals before national courts, either on their own initiative or at the request of one of the parties? In its reference, the Portuguese Supreme Court took the view that the interpretation of Article 33 TRIPs fell beyond the scope of the jurisdiction of the Court of Justice. This was because a number of Community measures existed in the area of patents, namely, regarding the creation of a supplementary protection certificate for medicinal products,63 the Community plant variety rights,64 and the legal protection of biotechnological inventions.65 However, as the above measures covered only certain limited areas of patent law, the referring court felt that the point required clarification by the Court of Justice. Having summarised the development of the case law by references to the binding effect of agreements concluded by the Community under Article 300(7) EC (new Article 216 (2) TFEU), the status of the WTO Agreement as an integral part of the Community legal order, the ensuing jurisdiction of the Court of Justice to interpret its provisions, and the absence of any allocation of competence between the Community and the Member States, the Court held that66 It follows that, the TRIPs Agreement having been concluded by the Community and its Member States by virtue of joint competence, the Court, hearing a case brought before it in accordance with the provisions of the EC Treaty, in particular Article 234 EC (new Article 267 TFEU), has jurisdiction to define the obligations which the Community has thereby assumed and, for that purpose, to interpret the provisions of the TRIPs Agreement. It then focused on the question of direct effect and reaffirmed the Dior dictum that Community law requires that TRIPs not be granted direct effect only in a field in which the Community has legislated, in which case national courts would only be required to interpret national law consistently with TRIPs as far as possible. Therefore, what became central was the question whether there was Community legislation in the area of patents. This was answered by what must be one of the shortest paragraphs to be found in a judgment delivered by the Court of Justice:67 ‘As Community law now stands, there is none’.

63 64 65 66 67

Council Reg 1768/92 [1992] OJ L/182/1. Council Reg 2100/92 [1992] OJ L/227/1. Directive 98/44/EC [1998] OJ L/213/13. Merck, above n 62, para 33. Ibid, para 40.

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Interpretation of Mixed Agreements This conclusion is substantiated by the very limited scope of the existing Community measures: the only one in the field of patents itself, namely Directive 98/44, deals with the specific isolated case of biotechnological invention; Regulation 2100/94 on plant varieties sets up a system which is distinct from patent law (as, for instance, it provides for much longer terms of protection); Regulation 1768/92 and Regulation 1610/9668 have a secondary function as they aim to compensate for the period which may elapse between the filing of a patent application and the granting of authorisation to place the relevant product on the market. This assessment led the Court to repeat the above statement, albeit in a rather qualified manner69: The fact is that the Community has not yet exercised its powers in the sphere of patents or that, at the very least, at internal level, that exercise has not to date been of sufficient importance to lead to the conclusion that, as matters now stand, that sphere falls within the scope of Community law.

The line of reasoning followed in the judgment is problematic on a number of grounds. In relation to the assessment of Community rules necessary in order to establish the Court’s jurisdiction to rule on direct effect, one is left puzzled as to the required criteria which the scope and intensity of such rules would need to meet. What is it that would make them ‘of sufficient importance’ to render direct effect a matter of Community (now Union) law? What are, as Advocate-General Colomer put it, ‘the parameters that would make it possible to ascertain the level of legislative activity sufficient to establish the competence of the Community and therefore of the Court of Justice’?70 This does not become clear in the judgment. Instead, it is as if one were expected to guess, almost intuitively, whether secondary measures amount to a sufficient body of law as to justify the jurisdiction of the Court of Justice. In another area of external relations, that of exclusive implied competence, it took us more than 20 years to understand what ‘common rules’ meant in the context of the AETR judgment,71 and the relevant principles still evolve. It would be regrettable if it took as long to determine the degree of EC legislative activity necessary to give rise to EC competence. Another problem has to do with the intensity with which the Court is prepared to carry out its examination of the existing secondary legislation. There is a distinct shift between the judgment in Étang de Berre and that in Merck: in the former, the Court referred generally to environmental legislation and held that the absence of specific measures dealing with the specific subject matter of the mixed agreement in question was irrelevant; in Merck, the Court examined the substance of the existing measures, only to conclude that they were not ‘of sufficient importance’ to give rise to Community competence. In a similar vein, 68 The latter Regulation is about the creation of a supplementary protection certificate for plant protection products: [1996] OJ L/198/30. 69 Merck, above n 62, para 46. 70 At para 49 of his Opinion. 71 See Opinion 2/91 (ILO) [1993] ECR I-1061 and Opinion 1/94 (WTO) [1994] ECR I-5267.

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Panos Koutrakos whilst acknowledging that the existing patent measures were not sufficient to substantiate jurisdiction, Advocate-General Colomer suggested in his Opinion the possibility of a broader test: should patent law be viewed as part of the broader area of intellectual property law, the Court would have jurisdiction to interpret the effects of Article 33 TRIPs. This suggestion echoes the above approach adopted in Étang de Berre with which, however, the judgment in Merck sits uncomfortably. It is also interesting, in this respect, that the Court should have made no reference to four legislative proposals pending at the time; these included measures on compulsory licensing of patents relating to pharmaceutical products for export to countries with public health problems,72 the Community patent,73 the conferment of jurisdiction on the Court of Justice in disputes relating to the Community patent,74 and the establishment of the Community Patent Court and concerning appeals before the Court of First Instance.75 The problems associated with basing competence on the above measures notwithstanding,76 it is curious that they should have been ignored even as indicative of an incrementally developed legislative activity in the area. In this context, it is worth noting that in Opinion 1/03 the Court had pointed out that, in order to ascertain whether an agreement by the Member States would affect EC law in the meaning of the AETR principle, account should be taken ‘not only [of] the current state of Community law in the area in question but also its future development, insofar as that is foreseeable at the time of that analysis’.77 In relation to the link between the judgment in Merck and prior case law, it has been argued that the former expands the scope of the Court’s jurisdiction considerably and unduly.78 This argument is based on the wording of paragraph 31 of the judgment, where it is pointed out that, following its conclusion by the Community, according to settled case law, the provisions of that convention now form an integral part of the Community legal order … [w]ithin the framework [of which] the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement …

72

COM(2004) 737 final and SEC (2004) 1348. COM(2000) 412 final [2000] OJ 337E/278. 74 COM(2003) 827 final. 75 COM(2003) 828 final. 76 A-G Colomer points out that ‘harmonising legislation is wanting, and the creation of a Community patent has met with insuperable resistance in the Council. At this stage, the Hermès case law, as altered by the judgment in Étang de Berre, which calls for applicable legislation, collapses, although uncertainty immediately arises concerning the parameters that would make it possible to ascertain the level of legislative activity sufficient to establish the competence of the Community and therefore of the Court of Justice’ (Merck, above n 62, para 49). 77 Opinion 1/03 (Lugano Convention) [2006] ECR I-1145, para 126. 78 See R Holdgaard, annotation on Case C-431/05 Merck, (2008) 45 CMLRev 1233, 1241–42. 73

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Interpretation of Mixed Agreements In particular, it is pointed out that, contrary to previous case law, this statement does not qualify the status of the mixed agreement, and consequently the jurisdiction of the Court, with reference to the scope of the Community’s competence.79 However, it is suggested that the implications of the formulation of this statement should not be exaggerated. On the one hand, it is difficult to see quite how the Court could justify its jurisdiction to interpret a provision of a mixed agreement falling within the exclusive competence of the Member States. On the other hand, the Court’s approach in all the judgments examined in this chapter (in fact, most of the judgments delivered in the area of EU external relations in general) is characterised by distinct reluctance to rule on issues not raised in the dispute before it and articulate general pronouncements. It would be inexplicable if this approach were changed in Merck in such an unobtrusive manner, with such profound implications. The questions raised by the approach of the Court, even prior to the judgment in Merck, and the ensuing lack of clarity were addressed by Advocate-General Colomer in his Opinion in that judgment. He put forward an alternative approach, based on the unlimited jurisdiction of the Court to interpret TRIPs. He substantiated this view on a number of grounds:80 the need for the Community to accommodate the ‘constitutional’ framework set out by the WTO Agreements by rendering it part of the Community legal order and ensuring the Community’s compliance with their provisions; the requirement that the duty of cooperation set out in Article 10 EC (new Article 4(3) TEU) be understood as binding the Community and the Member States in the implementation of WTO Agreements in good faith and ensuring their effectiveness; the need to interpret TRIPs in a uniform manner. The Advocate-General pointed out that the unlimited jurisdiction of the Court would not entail any transfer of competence to the Community: on the contrary, if there were uniform interpretation, binding on everybody, even in the fields in which there is as yet no Community legislation, the Member States could more easily comply with the provisions of Article 10 EC [new Article 4(3) TEU), making use of [legislative] powers …81

Furthermore, Advocate-General Colomer suggests that his approach is necessitated by the current state of the law, which he attacks in quite strong terms: the Court of Justice ought to be aware of the deficiencies in its case law and try to resolve the constant unease regarding its power to examine mixed agreements, by daring to change course and to assume its responsibility, in order both to reformulate its case law and adapt it to the fundamental principles of international law, and to invest it with the legal certainty required by institutions at intra-Community level …82

79 80 81 82

Ibid. At paras 55–59 of his Opinion. Ibid, para 58. Ibid, para 60.

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Panos Koutrakos This approach has two interrelated advantages: on the one hand, it is clear and easy to apply; and on the other hand, it would enable the Court to respond to the increasing regularity of disputes regarding the interpretation of mixed agreements. Advocate- General Colomer pointed out that, [w]ith the gradual increase in shared competence in the many and varied fields which are ’communitised’, it is predicted that an avalanche of questions will fall on the Court of Justice, requiring it to rule on its jurisdiction in the matter, and it will not always be able to avoid examining the relevant Community legislation …83

However, and with the utmost respect, whilst addressing the shortcomings of the current position, the approach suggested by Advocate-General Colomer is based on certain assumptions which are far from evident. For instance, the assertion that the WTO Agreements have ‘virtually become a “constitutional” framework’,84 with the implications this may entail, expresses an ideal rather than a fact. Whilst there is a healthy debate about the constitutionalisation of the WTO rules,85 the assumption put forward in his Opinion is not borne out by the positions adopted by the contracting parties or the relevant rules. In any case, and the above notwithstanding, it by no means follows that the Court’s unlimited jurisdiction is the necessary corollary of his assumption. The full integration of WTO rules within the Community legal order would not necessarily negate a multilevel system of interpretation and application. In fact, the position suggested by Advocate-General Colomer appears to be linked to his suggestion that the Court reverses its case law on the effects of the WTO law within the Community legal order. In the remainder of his Opinion, he attacks the denial of direct effect of WTO rules on various grounds, including its incompatibility with the principle pacta sunt servanda, its lack of subtlety in its approach to the margin of negotiation enjoyed by the Community institutions, its undue emphasis on the WTO system for settling disputes at the expense of the binding nature of the obligations undertaken by the Community, and a formalistic reading of the DSU provisions.86 Whilst he concludes that Article 33 TRIPs would not be directly effective, as its application is dependent on action by the national legislature, he advocates the reversal of the existing case law on direct effect in principle. 83

Ibid, para 52. Ibid, para 55. 85 From the voluminous literature, see D Z Cass, The Constitutionalization of the World Trade Organization (Oxford, Oxford University Press, 2005); J L Dunoff, ‘Constitutional Conceits: The WTO’s “Constitution” and the Discipline of International Law’ (2006) 17 European Journal of International Law 647; J Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge, Cambridge University Press, 2006); E-U Petersmann, ‘Multilevel Constitutionalism and Judicial Protection of Freedom and Justice in the International Economic Law of the EC’ in A Arnull, P Eeckhout and T Tridimas (eds), Continuity and Change in EU Law—Essays in Honour of Sir Francis Jacobs (Oxford, Oxford University Press, 2008) 338; N Walker, ‘The EU and the WTO: Constitutionalism in a New Key’ in G de Búrca and J Scott (eds), The EU and the WTO— Legal and Constitutional Issues (Oxford, Hart Publishing, 2001) 31. 86 See paras 71 et seq of his Opinion in Merck, above n 62. 84

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Interpretation of Mixed Agreements This approach is quite radical87 and at odds not only with earlier case law, starting from the Portuguese Textiles judgment, but also with more recent case law, such as the judgment in Van Parys, which reaffirmed the state of the law in quite emphatic terms.88 Following the judgment in Merck, the Court delivered its ruling in FIAMM,89 where it reaffirmed the principles of the pre-existing case law with considerable force. It is beyond the scope of this analysis to examine this aspect of the Court’s approach to the effects of the WTO rules.90 Suffice it to point out that the analysis by Advocate-General Colomer appears to bring together two issues which are not necessarily linked. VI.

CONCLUSION: WHICH UNION INTEREST?

There is a thread which brings together the judgments analysed in this chapter, namely, the acknowledgement of the broad jurisdiction of the Court of Justice. Viewed within the broader context of EU external relations law in general and mixed agreements in particular, this becomes one of the twin pillars aiming to ensure that the prevailing role of mixed agreements does not undermine what the Court calls ‘the Community interest’ which now, in the Lisbon era, has become the Union interest; the other pillar is the duty of cooperation which binds the Union institutions and the Member States in the process of negotiation, conclusion and implementation of mixed agreements, and which has been given increased prominence in the law of EC external relations.91 The link between these principles underpins the judgments of the Court on the scope of its jurisdiction: in Dior, and even more so in Schieving-Nijstad, a considerable role is carved out for national courts regarding the interpretation of TRIPs, and 87 This is recognised by A-G Colomer himself, who acknowledges that ‘I can glimpse no chance of abandoning the dualistic system by which, on an uncertain legal basis, the Court of Justice has transformed the implementation in the Community of the ius gentium, and of the WTO agreements, into a means of evading its obligations’ (ibid, para 78), and further that ‘[a]s the arguments of the Court of Justice belong rather to the political than the legal sphere, it is pointless to examine the dispute in depth and to trust that the criticisms of academic lawyers will overcome the resistance to accepting Advocate-General Saggio’s view [in Case C-149/96 Portugal v Council [1999] ECR I-8395] that a provision in an agreement can as a rule, by virtue of its clear, precise and unconditional terms, constitute a criterion of legality of Community acts, and that individuals are entitled to rely on it before the national courts only if it is implicit in the general context of the agreement that its provisions may be invoked before the courts’ (ibid, para 79). 88 Case C-377/02 Van Parys [2005] ECR I-1465. A-G Colomer finds the denial of direct effect in the latter ‘absolute in tone’ (para 71 of his Opinion in Merck, above n 62) as well as ‘surprising’ (ibid) in terms of its implications for compliance with the Court’s judgments. 89 Case C-120/06 P FIAMM and FIAMM Technologies v Council and Commission [2008] ECR I-6513. 90 See P Koutrakos, EU International Relations Law (Oxford, Hart Publishing, 2006) ch 7. 91 See Opinion 2/91 (ILO) [1993] ECR I-1061; Opinion 1/94 (WTO) [1994] ECR I-5267; Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469; Case C-13/00 Commission v Ireland [2002] ECR I-2943; Opinion 2/00 (Cartagena Protocol) [2001] ECR I-9713; Case C-266/03 Commission v Luxembourg [2005] ECR I-4805. For an analysis, see Cremona, above n 53, 125. See also chapter five by Hillion in this volume.

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Panos Koutrakos substantiated pursuant to the duty of cooperation and the function of the referring courts within the context of the preliminary reference procedure. Put differently, the broad construction of the duty of cooperation and its application to national courts too has as a corollary the broad construction of the jurisdiction of the Court of Justice to interpret mixed agreements. However, the pillar of mixity to which the Court’s broad jurisdiction amounts is of a curious shape and uncertain foundation. Whilst broad, the jurisdiction of the Court remains ill-defined, and questions persist as to which parameters are to constitute the basis for its definition. In this respect, two qualifications may be raised. First, the divergence of approach in the judgments examined in this chapter may be explained in the light of the different contexts in which the relevant cases reached the Court. Put differently, it does not follow that the Union interest which the Court’s judgments aim to serve is identical in all the cases on the interpretation of mixed agreements brought before it.92 The judgments in Hermès, Dior and Schieving-Nijstad, as well as that in Merck, were all rendered in response to preliminary references from domestic courts; this suggests that the ‘Community interest’93 in relation to the mixed agreement in question is defined in the light of the more general objective of the legal context within which it is pursued, namely, that of uniform application of Community law.94 Furthermore, in all the above cases, with the exception of Merck, the provision of the mixed agreement the interpretation of which was in issue was of a procedural nature which could apply in situations falling within the scope of either national or Community law. This was not the case in Merck, where Article 33 TRIPs was not a procedural provision and would not apply to situations falling within the scope of Community law. In a similar vein, the judgments in Berne Convention, Étang de Berre and MOX Plant were rendered in the context of the enforcement proceedings brought by the Commission, and the Community interest was defined in terms of compliance with Community law.95 As Cremona points out, the existence of Community law in an area covered by a mixed agreement renders the participation of the Member States along with the Community in that agreement subject to the Member States’ loyalty obligation.96 Whilst different interests may be identified in the approach to different questions pursuant to different procedures, this does not fully explain the current state of affairs. On the one hand, the lack of clarity which defines the case law in

92

Thanks to Marise Cremona for discussing this point. See n 11 above, para 32 of the judgment in Hermès and n 20 above, para 38 of that in Dior and Others (where, whilst not mentioned, it is implied). 94 See the early pronouncement to that effect in Case 166/73 Rheinmühlen [1974] ECR 33, 38. 95 In Berne Convention this was about the accession of all EEA parties to the Convention (above n 30, para 19); in Étang de Berre it was about compliance with the provisions of the Convention for the Protection of the Mediterranean Sea Against Pollution (above n 35, para 29); and in MOX Plant it was about the exclusive jurisdiction of the Court of Justice and the autonomy of the Community legal order (above n 41, para 154). 96 Cremona, above n 53, at 151–52. 93

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Interpretation of Mixed Agreements the area is also apparent in judgments which are delivered within the same context: in Dior, for instance, the Court defines its jurisdiction in terms broader than those suggested earlier in Hermès. On the other hand, the two Union interests identified above—uniformity of application of mixed agreements and compliance with the latter’s provisions—may not be understood as entirely distinct. In fact, they both serve the same ultimate objective, namely the correct implementation of mixed agreements within the Union legal order. It is not immediately apparent, for instance, why the different legal contexts within which the judgments in Étang de Berre and Merck were rendered justified a broad construction of existing Community law in the former but not in the latter. A second qualification to an overall criticism of the Court’s position has to do with the following: it is not realistic to expect the Court to provide us with a crystal-clear tool, the sharp edge of which would determine precisely in any given case where its jurisdiction would end. In relation to judgments delivered in response to preliminary references, the nature of the preliminary reference procedure and the function of the Court of Justice to respond to specific questions, and, more generally, the divergent nature of mixed agreements and their constant evolution, all suggest that complete clarity is illusory. In the internal market law, the principle of proportionality in the area of free movement and the Keck rule in the context of Article 28 EC (now Article 34 TFEU)97 are only examples of how the Union legal order and its students have learnt to live with principles which determine the outcome of a number of cases without enabling us to predict their application with certainty. However, what traders, their legal counselors, and national judges do expect is a better reasoning in the judgments which are delivered and in the ways in which their specific questions are addressed. There ought to be a balance struck between addressing the specific issues raised before the Court and ensuring legal certainty. This chapter has suggested that the balance has yet to be struck correctly.

97

Joined Cases C-267–8/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097.

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7 Adoption of Positions under Mixed Agreements (Implementation) JONI HELISKOSKI*

I.

INTRODUCTION

T

HIS CHAPTER CONCERNS the adoption of positions by the European Union and the Member States when they implement mixed agreements. In the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’), the concept of adoption of positions has a very specific meaning: it refers to the internal procedure whereby a position to be adopted on behalf of the Union in a body set up by an international agreement is established.1 In the present chapter, the concept is used in a more general sense, covering the establishment of positions in any situation that may arise in the course of implementation of mixed agreements. Three important aspects of implementation are excluded, however: first, the enactment of legislation for the purposes of implementing mixed agreements; secondly, the question of international responsibility of the Union and the Member States2; and, thirdly, the question of the jurisdiction of the Court of Justice to interpret such agreements.3 Lastly, the paper draws upon the practice relating to the adoption of positions by the European Community and its Member States; prior to the entry into force of the Treaty of Lisbon no mixed agreements had been concluded by the European Union (as a legal person in its own right) and its Member States. At the same time, it should be clarified that the Treaty of Lisbon is not deemed to alter either

* The views expressed are personal. 1 See Art 218(9) TFEU. 2 See chapter ten by Pieter-Jan Kuijper in this volume. 3 See chapter six by Panos Koutrakos in this volume.

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Adoption of Positions under Mixed Agreements the position of mixed agreements as an instrument of the Union’s external relations or the rules and principles governing their implementation.4 At the time of the first Leiden Colloquium on mixed agreements, and until the 1990s, the question of adoption of positions under mixed agreements received relatively little attention in the doctrine. The topic was included in ‘the List of Problems’ put forward by Claus-Dieter Ehlermann5 but, for instance, neither of the two principal treatises on mixed agreements published in the 1980s addressed the issue.6 It was really only after the judgments in Greece v Commission (where it was acknowledged that decisions of bodies set up by agreements concluded by the Community form an ‘integral part of Community law’)7 and in Sevince (where the possibility of their having ‘direct effect’ was recognised)8 that the issue began to invite attention, one indication thereof being the introduction of a specific provision governing the matter in Article 300 EC (now Art 218 TFEU) by the Treaty of Amsterdam.9 The participation by the Community in a number of important multilateral conventions (such as the United Nations Convention on the Law of the Sea (UNCLOS)) or in international organisations such as the World Trade Organisation (WTO) and the Food and Agriculture Organisation of the United Nations (FAO) also made the subject matter more topical. Since then, the question of the implementation of mixed agreements has received greater attention, both in literature10 and in actual practice.11

4 While the replacement, in the Lisbon Treaty, of the ‘European Community’ by the ‘European Union’ is taken account of in the terminology throughout the paper, it may none the less be more appropriate to refer to ‘Community’ or ‘Community law’ in some contexts (e.g., when judgments delivered under the EC Treaty are discussed). 5 See C-D Ehlermann, ‘Mixed Agreements: A List of Problems’ in D O’Keeffe and HG Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 3 at 19. 6 M J F M Dolmans, Problems of Mixed Agreements (The Hague, Asser Instituut, 1985); and K D Stein, Der gemischte Vertrag im Recht der Außenbeziehungen der Europäischen Wirtschaftsgemeinschaft (Berlin, Duncker & Humbolt, 1986). 7 Case 30/88 Greece v Commission [1989] ECR 3711. 8 Case C-192/89 Sevince [1990] ECR I-3461. 9 See above n 1 and A Dashwood, ‘External Relations Provisions of the Amsterdam Treaty’ (1998) 35 CMLRev 1019 at 1025–28. 10 See A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer Law International, 1998) 125 at 138–39; and J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer Law International, 2001) 101–19. 11 See Case C-370/07 Commission v Council (judgment of 1 October 2009, not yet reported) where the Council Decision of 24 May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was annulled by reason of the failure to indicate the legal basis on which it was founded. See also Case C-13/07 Commission v Council, where the Commission seeks the annulment of the decision of the Council and the Member States establishing the Community’s and the Member States’ position within the General Council of the WTO on the accession of the Socialist Republic of Viet Nam to the WTO (Opinion of A-G Kokott of 9 March 2009); and Case C-246/07 Commission v Sweden, where the Court is requested to declare that, by proposing unilaterally that a substance, PFOS (perfluorooctane sulphate), be added to Annex A to the Stockholm Convention on

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Joni Heliskoski The chapter has the following structure. First, a brief presentation of the general legal framework governing the implementation of mixed agreements will be provided (section II), followed by an overview of the acts and instruments that govern the procedure for the adoption of positions (section III). Then, much more detailed attention will be devoted to two issues that are deemed to lie at the heart of many (if not all) legal problems arising in the course of the implementation of mixed agreements: the first one concerns the circumstances in which Union law requires that a Union position is adopted under a mixed agreement, so that the adoption of a Member States position (or Member States positions) is excluded (section IV); the second issue concerns the obligations, mainly of a procedural nature, incumbent upon Member States when they are entitled to implement mixed agreements (section V).

II.

THE GENERAL LEGAL FRAMEWORK

There are two standard legal explanations for mixed agreements. First, it is maintained that mixed agreements are an inevitable corollary of the limited scope of the Union’s competence: when a particular agreement goes beyond the Union’s treaty-making competence, the Union’s action will have to be complemented by that of the Member States which assume the rest of the commitments. Secondly and much more importantly, the practice of mixed agreements is explained by the fact that the Union’s competence, even if it covered the whole scope of a given agreement, would not, as a rule, exclude the corresponding competence of the Member States. In such cases, it follows from settled case law of the Court of Justice that the Member States are entitled to become parties to the agreement.12 The relationship between the Union and the Member States under a mixed agreement cannot, however, be conceived of solely in terms of rules on competence. The Union’s objectives are not pursued solely through the conferment upon the Union of certain competence, or through actions taken by one or more of its institutions. The Treaties likewise imposes obligations upon the Member Persistent organic Pollutants, Sweden has failed to fulfill its obligations under Art 10 EC (now Art 4(3) TEU) and Art 300(1) EC (now Art 218(1–4) TFEU) (Opinion of A-G Poiares Maduro of 1 October 2009). 12 See esp Opinion 1/94 (Competence of the Community to conclude international agreements concerning services and the protection of intellectual property) [1994] ECR I-5267; Opinion 2/92 (Competence of the Community or one of its institutions to participate in the Third Revised Decision of the OECD on national treatment) [1995] ECR I-525; and, insofar as concerns development aid, Case C-316/91 Parliament v Council [1991] ECR I-625, paras 26, 34 and 35. This case law would seem to continue to be valid also in the light of the definition of ‘shared competence’ in Art 2(2) TFEU. See also protocol (No 25) on the exercise of shared competence, annexed to the TEU and the TFEU, where it is provided that ‘[w]ith reference to Article 2 of the [TFEU] on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.’

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Adoption of Positions under Mixed Agreements States, some of which may not imply any correlative powers for the Union.13 So, even when a matter falls within the power of the Member States, the latter must exercise that power consistently with Union law.14 In the specific context of mixed agreements, a particular instance, or illustration, of the above principle is provided by the Court’s case law concerning duties of loyal cooperation between the Union institutions and the Member States. In Opinion 1/94 on the WTO Agreement, the Court, referring to its own earlier case law on the matter, observed that where it is apparent that the subject matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States, it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community (Ruling 1/78 [1978] ECR 2151, paragraphs 34 to 36, and Opinion 2/9115. . . , paragraph 36). (footnote added)16

This duty of cooperation, reaffirmed by the Court most notably in the context of the FAO of the United Nations17 as well as the UNCLOS,18 constitutes, alongside the rules concerning the existence and exercise of the Union’s external competence, an important conceptual framework for analysis of the position of the Union and the Member States under a mixed agreement.19 Moreover, the very idea of cooperation between the Member States and the Union institutions

13 See A Dashwood, ‘The Limits of European Community Powers’ (1996) 21 ELRev 113 at 114; and M Cremona, ‘Defending the Community Interest: the Duties of Cooperation and Compliance’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 125 at 126. 14 See, eg, Case C-466/98 Commission v United Kingdom [2002] ECR I-9427, para 41; and Cremona, above n 13, at 139–41. 15 Opinion 2/91 (ILO Convention concerning Safety in the Use of Chemicals at Work) [1993] ECR I-1061. 16 Opinion 1/94, above n 12, para 108. See also Joined Cases C-300/98 Dior and C-392/98 Assco [2000] ECR I-11307, para 36. 17 Case C-25/94 Commission v Council [1996] ECR I-1469, paras 48–50. 18 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635, paras 173 et seq. 19 See I MacLeod, I D Hendry and S Hyett, The External Relations of the European Communities (Oxford, Clarendon Press, 1996) at 145; P Eeckhout, External Relations of the European Union—Legal and Constitutional Foundations (Oxford, Oxford University Press, 2004) at 209, where the duty of cooperation is regarded as ‘the overarching legal principle governing mixity’; P Koutrakos, EU International Relations Law (Oxford, Hart Publishing, 2006) at 172; R Holdgaard, External Relations Law of the European Community. Legal Reasoning and Legal Discourses (Alphen aan den Rijn, Kluwer Law International, 2008) at 160–63; Cremona, above n 13, at 157; and C Hillion, ‘Tous pour un, un pour tous! Coherence in the External Relations of the Union’, in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 10 at 28.

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Joni Heliskoski reflects the idea that mixed agreements genuinely involve some matters which fall within the Union’s competence and others in respect of which competence is exercised by the Member States.20 While the general legal framework described above may well serve the purpose of explaining the legal rationale of mixed agreements, it does not go very far in providing for the rules and principles that govern question of implementation of mixed agreements. Of course, it is obvious that, in principle, only the Union can implement the agreement insofar as it falls within the Union’s exclusive competence.21 Likewise, the Member States must be in charge of the implementation insofar as the agreement goes beyond the scope of the Union’s competence.22 In practice, however, things may well get more complicated. A concrete issue of implementation may fall in part within the competence of the Union and in part within that of the Member States. Or, while it may fall safely within the scope of the Union’s competence, the nature of that competence could well be nonexclusive. Would the Member States be entitled to implement the agreement in such a situation, or would there always have to be a position adopted by the Union or, indeed, a joint position of the Union and the Member States? It is with the aim of addressing these and other similar problems that the Union institutions and Member States have laid down acts, instruments or arrangements specifically to govern the implementation of mixed agreements. Before a more detailed analysis is made of the rules and principles they may contain that are relevant for present purposes, a general overview will be provided of the various kinds of arrangements.

III.

ACTS AND INSTRUMENTS GOVERNING THE ADOPTION OF POSITIONS

Article 218(9) TFEU lays down a simplified procedure for the purpose of establishing the positions to be adopted on behalf of the Union in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement. The Union’s position shall be adopted by the Council, acting by a qualified majority on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy. The European Parliament shall be immediately and fully informed of the Council’s decision. 20 See Opinion of A-G Tesauro in Case C-53/96 Hermès [1998] ECR I-3603, para 13; and Opinion of A-G La Pergola in Case C-268/94 Portugal v Council [1996] ECR I-6177, where it is observed that ‘[c]oordination in fact requires that the bodies providing it should enjoy equal standing’ (para 19). 21 See, eg, Case 804/79 Commission v United Kingdom [1981] ECR 1045, para 18. For the definition and scope of the Union’s exclusive competence, see Arts 2(1) and 3 TFEU. 22 See Ruling 1/78 (IAEA draft convention on the physical protection of nuclear materials, facilities and transport) [1978] ECR 2151, paras 31 and 36.

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Adoption of Positions under Mixed Agreements It should be underlined that Article 218(9) TFEU only governs the establishment of positions to be adopted on behalf of the Union and contains no provisions governing the establishment of positions in circumstances where Member States exercise their competence under a mixed agreement. Neither the EC Treaty nor the Treaty on the Functioning of the European Union (TFEU) contains any specific provisions that would govern the exercise of Member State competence under a mixed agreement.23 It may be recalled that Article 116 of the EEC Treaty, repealed by the Treaty of Maastricht, had authorised the Council, acting by a qualified majority on a proposal from the Commission, to determine the ‘scope and implementation’ of the common action the Member States were required to take within international organisations of an economic character. Attempts were made to reintroduce a similar provision at Amsterdam,24 but no longer at Nice25 or during the European Convention26 and the Intergovernmental Conference leading to the Treaty establishing a Constitution for Europe. In theory, recourse could be had to Article 218(9) TFEU, together with the provisions of Title V of TEU on the CFSP, for the establishment of a common position of the ‘European Union’ under mixed agreements. In legal terms, however, this would be problematic in the light of Article 40, first paragraph, of the TEU: measures adopted pursuant to Title V of the TEU instead of Union competences referred to in Articles 3 to 6 of the TFEU would be likely to ‘affect’ those competences in the sense of Article 40 TEU and, therefore, stand in contradiction to the provision in question.27 Thus, the procedures set out in the TEU would in any case be available only in matters falling outside the scope of the Union competences referred to in Articles 3 to 6 of the TFEU. Even on this hypothesis, however, the Council has in the past shown no inclination to use the

23 Cf Art 218(9) of the TFEU, whereby the scope of application of the procedure provided for in Art 300(2), second subpara, has been extended to the CFSP. 24 See the initial proposal by the Presidency based on the Council deciding by unanimity (Doc CONF 3870/96 (16 July 1996)) and Commission’s proposal in which the Council would have acted by a qualified majority (Doc CONF 3890/96 (25 July 1996)). 25 Cf the draft Protocol on Arrangements for participation by the European Union (European Community and Member States) in WTO proceedings presented to the 2000 Intergovernmental Conference under which the common positions would have been established by the Council acting by a qualified majority in all cases, whether involving the exercise of Community or Member State competence (Doc SN 2705 (10 May 2000)). 26 The Convention’s Working Group VII, ‘External Action’, merely agreed that ‘Member States should enhance the coordination of their positions in international organisations and conferences with a view to agreeing on EU positions and a strategy to promote them’. See the Final Report of Working Group VII on External Action (Doc CONV 459/02 (16 December 2002)). 27 See esp Case C-91/05 Commission v Council [2008] ECR I-3651. The Court annulled 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] OJ L/359/65) on the ground that the Council had infringed Art 47 TEU (now Art 40, first para, TEU) by adopting the contested decision on the basis of Title V of the EU Treaty, even though it also fell within the Community’s development cooperation policy. For a more detailed analysis, see J Heliskoski, ‘Small Arms and Light Weapons within the Union’s Pillar Structure: an Analysis of Article 47 of the EU Treaty’ (2008) 33 ELRev 898.

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Joni Heliskoski provisions Title V of the TEU for the purposes of establishing common positions of the ‘European Union’ under mixed agreements.28 In the absence of Treaty provisions governing the adoption of positions under mixed agreements, a number of acts of secondary law, instruments and other arrangements have been adopted, for the purpose of providing for rules and principles to govern the question of the adoption positions under a given mixed agreement. In the light of their legal form, such acts, instruments and other arrangements fall, broadly speaking, into three different categories as follows: a) Formal decisions adopted by the Council pursuant to Article 218 TFEU on the conclusion of a mixed agreement on behalf of the Union. See, for example, Annex III to Council Decision (97/836/EC) of 27 November 1997 with a view to accession by the European Community to the Agreement of the United Nations Economic Commission for Europe concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted to and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions (‘Revised 1958 Agreement’).29 It should be emphasised that the Council Decision is a rare instance of a formal act of the Union institutions providing for a simplified procedure for the exercise of both Union and Member State competence under a mixed agreement. b) Formal Decisions adopted by the Council pursuant to Article 218 TFEU, together with a decision of the Representatives of the Governments of the Member States Meeting within the Council. See, for example, Article 3 of the Council Decision (2003/159/EC) of 19 December 2002 concerning the conclusion of the Partnership Agreement between the African Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 200030 and the Internal Agreement of 18 September 2000 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

28 But see Art 2 of the Council Decision (98/392/EC) of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof ([1998] OJ L/179/1), providing that the Community and its Member States are to coordinate the positions they adopt in bodies of the International Seabed Authority (see Part XI, Section 4 of UNCLOS) in accordance with the mandate of the Working Party on the Law of the Sea (Annex III to the Decision). The mandate encompasses, inter alia: (i) the preparation, on issues within the Community competence, of draft Community positions within bodies set up under the Convention; and (ii) the coordination of the activities of the Community and its Member States in the International Sea-bed Authority and its bodies, and consultations with a view to drafting common positions on issues of general interest coming under the CFSP. Positions on questions within the Community’s competence are adopted by the ‘normal procedure’. Questions falling under the Union’s foreign policy are governed by Title V of the TEU. 29 [1997] OJ L/346/78. 30 [2003] OJ L/65/27.

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Adoption of Positions under Mixed Agreements implementation of the ACP–EC Partnership Agreement31 and the Internal Agreement of 10 April 2006 amending the Internal Agreement of 18 September 2000.32 The Internal Agreement concerns the adoption of positions under the Partnership Agreement on ‘matters for which the Member States are competent’. c) Informal arrangements (‘codes of conduct’) adopted between Union institutions and representatives of the Member States. See, for example, ‘PROBA 20’, an Arrangement between the Council and the Commission concerning the Community and the Member States’ participation in international negotiations on raw materials falling within the UNCTAD’s Integrated Programme33; the Code of Conduct between the Council, the Member States and the Commission on the Post-Uruguay Round Negotiations on Services34; the Arrangement between the Council and Commission on preparation for FAO meetings and statements and voting35; and the Code of Conduct between the Council, the Member States and the Commission on the UNESCO negotiations on the draft Convention on the protection of the diversity of cultural contents and artistic expressions.36 The briefest of glances at the above arrangements reveals that each of them has been drafted with the particular context of its own in mind. The specific purpose served by each of these arrangements is also illustrated by the fact that there exists no act, instrument or arrangement with a more general scope of application governing the adoption of positions under mixed agreements, nor has there ever been an attempt to lay down one. This being the case, any general analysis of the law governing the adoption of positions under mixed agreements cannot rely solely on the practice emerging from such arrangements. The rules and principles on the distribution of competence, as well as on the duties of loyal cooperation between the Union institutions and the Member States, must also be taken into consideration. Thus, it is through such an approach that the two questions already mentioned will be addressed in what follows: first, the question as to when there shall be a Union (as opposed to Member States’) position under a mixed agreement; and, secondly, the question as to obligations, of a mainly procedural nature, incumbent upon Member States when they adopt a positions of their own.

31

[2000] OJ L/317/376. [2006] OJ L/247/48. 33 For the text of the unpublished Arrangement of 30 March 1981, see E L M Völker and J Steenbergen, Leading Cases and Materials on the External Relations Law of the EC (with emphasis on the Common Commercial Policy) (Deventer, Kluwer, 1985) at 48. 34 For the text of the Code, see Opinion 1/94, above n 12, at 5365–66. 35 For the text, see R Frid, The Relations Between the EC and International Organizations. Legal Theory and Practice (The Hague, Kluwer Law International, 1995), Annex VI. 36 For the text of the Code, see Council Doc 5768/05 CULT 4 (31 January 2005). See also 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 L/201/15, and below n 62. 32

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Joni Heliskoski IV.

CIRCUMSTANCES IN WHICH A UNION POSITION MUST BE ADOPTED

This question concerns the problem as to the circumstances in which it is legally necessary to adopt a Union position, so that action by Member States, either individually or collectively, is a priori ruled out. In this respect, consideration will be given first to situations where a matter falls within the Union’s exclusive competence and then to situations where Union competence exists but is not exclusive in nature.

A. Matters within the Union’s exclusive competence When the position to be adopted falls within the Union’s exclusive competence in its entirety, any concurrent exercise of competence on the part of the Member States is excluded.37 There will have to be either a Union position, or no position at all.38 Of course, the same applies vice versa when the position to be adopted falls wholly within Member State competence. Things become more complicated when the Union’s exclusive competence does not cover the given matter in its entirety. In general, mixed agreements are governed the principle of alternative exercise of rights—that is, that while the Union and the Member States could decide on the exercise of their respective rights under the agreement, they should not exercise those rights concurrently.39 Therefore, save for the cases where the agreement allows the Union and the Member States to exercise their competence jointly,40 it will be necessary to decide as to whether a position is adopted by the Union or by the Member States.

37 Save where a specific authorisation has been granted by the Union institutions in accordance with Union law. See Case 41/76 Donckerwolcke [1976] ECR 1921, para 32. 38 See, eg, Case 804/79 Commission v United Kingdom, above n 21, para 18, and Case C-45/07 Commission v Greece (judgment of 12 February 2009, nyr), where the Court held that by submitting to the International Maritime Organisation (IMO) a proposal (MSC 80/5/11) for monitoring the compliance of ships and port facilities with the requirements of ch XI-2 of the International Convention for the Safety of Life at Sea, concluded in London on 1 November 1974, and the International Ship and Port Facility Security Code, Greece had failed to fulfil its obligations under Arts 10 EC (now Art 4(3) TEU), 71 EC (now Art 91 TFEU) and 80(2) EC (now Art 100 TFEU). Given that in Regulation (EC) No 725/2004 of the European Parliament and of the Council of 31 March 2004 on enhancing ship and port facility security ([2004] OJ L/129/6) Community legislature had decided to incorporate in substance both of those international instruments into Community law, Greece had taken an initiative likely to affect the provisions of the Regulation in the sense of the AETR judgment (Case 22/70 Commission v Council [1971] ECR 263) (see esp paras 22–23 of the judgment). 39 See Heliskoski, above n 10, at 134–37. 40 As would seem to be the case, eg, under the Agreement establishing the World Trade Organization (WTO) ([1994] OJ L/336/3). See Opinion of A-G Kokott in Case C-13/07 Commission v Council, above n 11, concluding that the Community had not been entitled on its own to approve within the General Council of the WTO the accession of the Socialist Republic of Viet Nam to the organisation but would have required concerted involvement of the Member States pursuant to Art 133(6) EC (now repealed by the Treaty of Lisbon).

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Adoption of Positions under Mixed Agreements The acts and instruments governing the establishment of positions examined in section III above typically do not provide much guidance for such a situation. For instance, the Internal Agreement on measures to be taken and procedures to be followed for the implementation of the ACP–EC Partnership Agreement only lays down the relevant procedures for ‘matters for which the Member States are competent’, whereas the adoption of positions on matters falling within the Union’s competence is governed by Article 3 of the Council Decision concerning the conclusion of the Partnership Agreement. PROBA 20 and the WTO ‘Code of Conduct’ on Services are entirely silent on the question of the distribution of competence and merely refer to the establishment of positions by means of ‘the usual procedure’41 or according to ‘the relevant decision making procedures’.42 In other words, no rules are laid down to govern a situation where the position to be adopted falls partly within the Union’s exclusive competence. However, the Arrangement on preparation for FAO meetings and statements and voting, as well as the Code of Conduct on the UNESCO negotiations on the draft Convention on the protection of the diversity of cultural contents and artistic expressions, deviate from the general picture in this respect. So as to take account, at the level of the Union and its Member States, of the principle of alternative exercise of membership rights explicitly provided for in Article II:8 of the FAO Constitution,43 the FAO Arrangement44 provides for an exceptionally detailed set of rules on statements and voting in FAO meetings. Section 2.3 of the Arrangement reads as follows: Where an agenda item deals with matters containing elements of both 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 add to the Presidency statement. Member States will vote in accordance with the common position;

41 Para C(b)(ii) of the Arrangement (above n 33) merely refers to ‘a common position previously established by means of the usual procedure’. 42 Para 1 (c) of the Code (above n 34) refers to ‘positions reached on all issues according to the relevant decision making procedures’. In a declaration entered in the Council minutes the Council declared that ‘the phrase in paragraph 1(c) “The relevant decision making procedures” means, in the case of national competence, consensus’. The Commission declared that ‘in implementing the relevant decision making procedures, every effort should be made to reach consensus . . .’. 43 The European Community and its Member States are both Members of the Organization (see especially Art II:3 of the FAO Constitution). The principle of alternative exercise of membership rights requires the Community and the Member States to indicate, before every FAO meeting, first, which of them has competence in respect of any specific question to be considered at the meeting and – as they may both be competent – secondly, which will exercise the right to vote in respect of each particular agenda item (Rule XLI:2 of the General Rules of the FAO). 44 Above n 35.

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Joni Heliskoski −

the Commission shall express the common position when the thrust of the issue lies 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.45

The application of this rule was put to practical test in a dispute over the exercise of voting rights in the FAO in respect of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.46 The Commission took the view that the Agreement fell predominantly, if not wholly, within the Community’s exclusive competence by virtue of the common fisheries policy. Accordingly, the Commission proposed in the Committee of Permanent Representatives of the Member States (COREPER) that section 2.3, second indent, of the Arrangement between the Council and the Commission be followed. However, COREPER changed the annotated agenda to be sent to the FAO to read ‘competence: mixed—vote: Member States’,47 in accordance with section 2.3, first indent, on the ground that conditions of registration and flagging fell within the Member States’ competence. In the judgment, the Court accepted the Commission’s position that the draft Agreement concerned an issue the thrust of which lay in an area within the exclusive competence of the Community. In particular, the Court observed that the provisions of the draft Agreement relating to the imposition of possibly penal sanctions or to assistance for developing countries which, according to the Council, fell within the competence of the Member States, did not appear to occupy a prominent position in the draft Agreement.48 Moreover, the Court held that section 2.3 of the FAO Arrangement represented ‘fulfilment of that duty of cooperation’ between the Community and its Member States within the FAO and that, in drawing up the Arrangement, it had been their intention to enter into a binding commitment towards each other.49 Accordingly, the Council had been required to observe section 2.3 of the Arrangement.50 Like the FAO Arrangement, the UNESCO Code of Conduct51 established the test as to where the ‘preponderance of the issue’ lay as the decisive criterion for deciding whether competence should be exercised by the Union or by the Member States. Paragraph 3 of the Code provided as follows: The Presidency and the Commission will agree on which of them will be delivering any statement to be made on behalf of the Community and its Member States in cases where the respective competencies are inextricably linked. The Commission will present the common position when the preponderance of the matter concerned lies 45 Should it prove impossible to reach a common position, Member States are entitled to speak and vote (section 2.4). 46 Case C-25/94 Commission v Council [1996] ECR I-1469. 47 See Rule XLI:2 of the General Rules of the FAO. 48 Commission v Council, above n 46, para 47. 49 Commission v Council, above n 46, para 49. 50 Ibid, para 50. 51 Above n 36.

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Adoption of Positions under Mixed Agreements within the competence of the Community and the Presidency will present the common position when the preponderance of the matter concerned lies within the competence of the Member States . . .52

There is, however, one important difference between the FAO Arrangement and the UNESCO Code of Conduct in this respect. While under the FAO Arrangement the test to be applied concerns the question as to whether the thrust of the issue lies either outside or within the exclusive competence of the Union, the UNESCO Code of Conduct was more ambiguous on whether the corresponding test was based on the existence of Union competence or the exclusive nature thereof. This problem—which, much more generally, is the perennial problem relating to the implementation of mixed agreements—actually concerns the question that is addressed next, that is, the question as to whether it is legally necessary to adopt a Union position whenever Union competence exists (but may not be exclusive to its nature).

B. Matters within the Union’s non-exclusive competence In relation to the legal nature of mixed agreements, or, more precisely, the distribution of competence between the Union and the Member States under such agreements, two principal ‘schools of thought’ have traditionally existed in the doctrine. The first one argues that, in respect of matters for which Union competence exists (but is not exclusive), the participation in a mixed agreement is shared by the Union and the Member States in the sense that within those areas of ‘shared competence’ legal authority must always be exercised jointly by the Union and by the Member States.53 While the Member States may have some competence in their own right, they are always deemed to ‘share’ it with the Union that possesses a corresponding (non-exclusive) competence. In contrast, the second school of thought argues that, under a mixed agreement, competence is vested in the Union as regards matters on which that competence has been exercised (or which otherwise fall within the Union’s exclusive competence). For the remainder, competence remains with the Member States.54 It is not too difficult to see that this issue has important implications when it comes to the implementation of mixed agreements. 52 If no agreement can be found on a common position, the Member States may express their point of view (para 7, second subpara, of the Code of Conduct). However, they are entitled to do so only in relation to those areas deemed to lie within their competence (para 1). 53 See, eg, Rosas, above n 10, at 131–32; J Dutheil de la Rochère, ‘L’ère des compétences partagées—à propos de l’étendue des compétences extérieures de la Commununauté européenne’ Revue du Marché commun et de l’Union européenne (1995) 461 at 469; and A Appella, ‘Constitutional Aspects of Opinion 1/94 of the ECJ Concerning the WTO Agreement’ (1996) 45 ICLQ 440 at 460. 54 See, eg, MacLeod, Hendry and Hyett, above n 19, at 143; G Garzón Clariana, ‘La mixité: le droit et les problèmes pratiques’ in JHJ Bourgeois, J-L Dewost and M-A Gaiffe (eds), La Communauté européenne et les accords mixtes: quelles perspectives? (Bruxelles, Presses interuniversitaires européennes, 1997) 15 at 17; and, for a detailed analysis, Heliskoski, above n 10, at 46–48.

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Joni Heliskoski In general, the ‘choice’ between the two positions is rendered difficult by the fact that, at the time of the conclusion of mixed agreements, the question of the distribution of competence or, more specifically, the implications of the Union’s non-exclusive competence not being exercised, are not addressed. In most cases, the decisions of the Council on the conclusion of mixed agreements refrain from spelling out either the general parameters of the Union’s external competence, or the parts of a given agreement deemed to have been affected by the exercise of that competence. Exceptionally, they may refer to the participation by the Member States in the agreement alongside the Union,55 or even explain in the abstract that a given agreement is concluded insofar as concerns matters within the Union’s competence.56 However, save where a declaration of competence is required by the agreement, there is no indication of the more concrete demarcation between the respective spheres of competence or the eventual exercise of the Union’s non-exclusive competence. Indeed, it has been one of the greatest virtues of the technique of mixed agreements (and certainly a major factor behind its success) that the precise scope of the respective spheres of Union and Member State competence can be left undefined at the stage of the conclusion of an agreement. The same ambiguity is reflected in the acts or arrangements governing the establishment of positions under mixed agreements; with the exception of the FAO Arrangement57 (which establishes the exclusive nature of Union competence as the decisive criterion), they do not either draw any systematic distinction between the Union’s exclusive and non-exclusive competence, or attribute legal meaning to the exercise or non-exercise of the non-exclusive competence of the Union. Sometimes, as in the case of the ECE Revised 1958 Agreement,58 the possibility of exercising Member States competence is provided for after it has been decided that Union competence will not be exercised. At other times, as in the case of the Internal Agreement relating to the ACP–EC Partnership Agreement,59 the situations in which Member States may act are provided for but not defined in terms of the nature of the Union’s competence. It has been argued that the UNESCO Code of Conduct concerning the negotiations on the draft Convention on the protection of the diversity of cultural contents and artistic expressions60 prevented the adoption of Member States’ positions in matters falling within the Union’s competence even when that

55 See, eg, Council Decision (94/570/EC) of 18 July 1994 concerning the conclusion of International Coffee Agreement (1994), [1994] OJ L/222/1. 56 Eg, Council Decision (90/611/EEC) of 22 October 1990 concerning the conclusion of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, [1990] OJ L/326/56. 57 Above n 35. 58 See Annex III to Council Decision (97/836/EC) of 27 November 1997 with a view to accession by the European Community to the Revised 1958 Agreement, above n 29. 59 See Art 5 of the Internal Agreement, above n 31. 60 Above n 36.

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Adoption of Positions under Mixed Agreements competence was not exclusive, or when the Union had not exercised its nonexclusive competence.61 One could make that argument on the basis of paragraph 7 of the Code of Conduct, which limited the possibility for Member State action to the areas covered by paragraph 1 of the Code. The latter provision contained a non-exhaustive list of matters deemed to fall within Member State competence, including any ‘matters falling exclusively or primarily within the competence of the Member States’. In the opinion of the present author, however, it could equally well be argued that the UNESCO Code of Conduct did not necessarily intend to abandon the distinction between exclusive and nonexclusive Union competence, even if that distinction was not spelt out in the text of the Code.62 If the implications of the existence of non-exclusive Union competence for the possibilities of the Member States to implement mixed agreements are left somewhat ambiguous by the practice of the Union institutions and the Member States, there is a body of case law of the Court of Justice that sheds at least some additional light on the matter. The cases concern the WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS)63 and the UNCLOS.64 The Court of Justice has addressed, a number of times, the question of the effects of the WTO Agreement in general and TRIPS in particular within the Community and national legal orders. In Opinion 1/94, the Court held that since, at that time, the Community had only partially exercised its competence in the field of the enforcement of intellectual property rights, TRIPS fell within a joint competence of the Community and the Member States.65 More recently, in the Dior66 and Merck67 judgments, the Court has further clarified the nature of the distribution of competence between the Community and the Member States under TRIPS, noting that when the field is one in which the Community has not yet legislated and which consequently falls within the competence of the Member States, the protection of intellectual property rights and measures taken for that purpose by the judicial authorities do not fall within the scope of Community law . . .68

61

See chapter twelve by Frank Hoffmeister in this volume. See also 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 L/201/15. Art 3 of the Decision provides that ‘[i]n respect of matters falling within the Community’s competence, the Commission shall represent the Community at meetings of the bodies created by the UNESCO Convention, in particular the Conference of the Parties referred to in Article 22 thereof, and shall negotiate on its behalf concerning questions falling within the remit of those bodies.’ 63 [1994] OJ L/336/214. 64 [1998] OJ L/179/3. 65 Opinion 1/94, above n 12, paras 103–04. 66 Dior, above n 16. 67 Case C-431/05 Merck [2007] ECR I-7001. 68 Dior, above n 16, para 48. 62

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Joni Heliskoski On the other hand, if it should be found that there are Community rules in the sphere in question, Community law will apply . . .69

Therefore, the Court considered TRIPS to fall partly within the competence of the Community and partly within the competence of the Member States, until such point as the Community has actually decided fully to exercise its nonexclusive competence.70 While these cases have all concerned the jurisdiction of the Court to interpret TRIPS as well as the question of its direct effect, the case law is also relevant to the question of adoption of positions under mixed agreements. In the very first case concerning the interpretation of TRIPS, Hermès, Advocate-General Tesauro not only laid the foundations for the position consistently endorsed by the Court of Justice, but he also explained why the expression ‘joint competence’, used by the Court in Opinion 1/94, should not be interpreted as meaning that the competence belongs equally and concurrently to the Community and the Member States, so that any decision in an area of joint competence would have to be adopted by mutual agreement between Community and the Member States. He observed that [i]n view of the absence of instruments enabling action to be taken should a joint decision not be reached, the proposed interpretation would mean that, in matters where competence is shared, the Community and every Member State would have separate and effective powers of veto, with the inevitable consequence that the decisionmaking process would be completely blocked, quite possibly leading to a deadlock and a ’non-vote’ by the Community and its Member States.71

In other words, if, under a mixed agreement, a shared Community and Member State competence always had to be exercised jointly, one would have both to follow the relevant Community decision-making procedure and to adopt a common accord of the Member States. Therefore, in the opinion of the Advocate-General, a more tenable view is that where no common position can be achieved after appropriate coordination, the ‘Member States and [the] Community have the last word in their respective areas of competence’.72 In practice, this means that where a Community position can be reached according to the relevant decision-making procedure, no Member State position will be needed. Conversely, if there is no Community position, each Member State is entitled to adopt its own position.73 69

Merck, above n 67, paras 34–35. See also Opinion of A-G Tesauro in Hermès, above n 20, para 13. It may be noted that the above interpretation has been confirmed by the Court of Justice in a case at the material time of which the Treaty of Nice (which significantly amended Art 133 EC (now Art 207 TFEU)) had already entered into force. See Case C-275/06 Promusicae [2008] ECR I-271, para 60. 71 See Opinion of A-G Tesauro in Hermès, above n 20, para 13. 72 Ibid. 73 See 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 Law 61 at 80–84. The Opinion of A-G Kokott in Case C-13/07 Commission v Council, above 70

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Adoption of Positions under Mixed Agreements A similar interpretation has been endorsed by the Court in respect of UNCLOS. In the case concerned, the Commission had brought infringement proceedings against Ireland for having instituted dispute-settlement proceedings against the United Kingdom under UNCLOS (a mixed agreement) concerning the MOX plant located at Sellafield (United Kingdom).74 In order to address the Commission’s complaint the Court of Justice had to examine, inter alia, whether the provisions of UNCLOS relied on by Ireland before the Arbitral Tribunal came ‘within the scope of Community competence’. The UN Convention, like the FAO Constitution, expressly provides for the principle of alternative exercise of rights.75 The Convention also requires the Union to make a declaration specifying the matters governed by the Convention ‘in respect of which competence had been transferred’ to the Union from the Member States. Point 2 of the Declaration submitted by the Community (entitled ‘Matters for which the Community shares competence with its Member States’) provides, inter alia, that the Community has exclusive competence only to the extent that such provisions of the Convention or legal instruments adopted in implementation thereof affect common rules established by the Community. When Community rules exist but are not affected, in particular in cases of Community provisions establishing only minimum standards, the Member States have competence, without prejudice to the competence of the Community to act in this field. Otherwise competence rests with the Member States.

Addressing the question whether the provisions of UNCLOS relied on by Ireland came ‘within the scope of Community competence’, the Court observed that, under the Declaration, and within 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.76

The Court then examined a number of acts of secondary law and concluded that the Convention’s provisions on the prevention of marine pollution came within the scope of Community competence which the Community had decided to exercise by becoming party to the Convention.77 Therefore, while establishing its

n 11, however suggests that once the Union exercises its competence (eg, because it may be partly exclusive), it cannot voluntarily refrain from the exercise of that competence to the extent is is non-exclusive (para. 83). 74 MOX Plant, above n 18. 75 Under Art 4(3) of Annex IV to UNCLOS, ‘an international organization shall exercise the rights and perform the obligations which its member States which are Parties would otherwise have under this Convention, on matters relating to which competence has been transferred to it by those member States. The member States of that international organization shall not exercise competence which they have transferred to it’. 76 MOX Plant, above n 18, para 108. 77 Ibid, paras 120–21.

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Joni Heliskoski own jurisdiction to deal with disputes relating to the interpretation and application of those provisions, the Court at the same time rejected the Commission’s contention that the areas of shared competence are ‘transferred and exercised’ by the Community even if they relate to matters in respect of which there are, at the given moment, no Community rules.78 As Cremona rightly points out, the Court’s conclusions in this respect were ‘in fact predicated on the scope of Community law (the existence of Community rules in the area).’79 This conclusion, it is submitted, is broadly in line with the above case law of the Court concerning the TRIPS Agreement. To date, there has been no case where the Court of Justice would have required the Union and the Member States to exercise their ‘shared’ or ‘joint’ competence jointly.80 Hence, it can be argued that, as a matter of principle, in matters where the Union’s competence is not exclusive and where it is not decided to exercise the Union’s non-exclusive competence, the Member States are entitled to exercise their competence either collectively or individually. Another matter is that the Member States’ right in question may be circumscribed by certain obligations of Union law, as will be explained in the following section. V.

UNION LAW OBLIGATIONS GOVERNING THE EXERCISE OF MEMBER STATE COMPETENCE

The above analysis has shown that there exists, as a matter of principle, scope for the Member States to exercise, either collectively or individually, their competence under a mixed agreement. Not only can mixed agreements cover matters for which no Union competence exists, but the Union competence may also not be of an exclusive nature. On this hypothesis, the question arises as to whether there are certain obligations of Union law that the Member States are required to fulfil before they take action in the context of a mixed agreement and, if so, what is the scope and content of those obligations.81 Again, one is faced with the familiar problem: the agreements themselves and the instruments governing their implementation provide little or no guidance on the question. Even if there were some rules on the possibility for Member States 78

Ibid, para 104. Cremona, above n 13, at 150. 80 Cf the field of development aid where the Union and the Member States are entitled to exercise their respective powers jointly. See Parliament v Council, above n 12, para 26. See also Arts 2(5), first subpara, and 4(3)-(4) TFEU. 81 On the different question of whether the Member States are required, under Union law, to exercise their competence under a mixed agreement, see Case C-13/00 Commission v Ireland [2002] ECR I-2943, concerning Art 5 of Protocol 28 to the Agreement on the European Economic Area of 2 May 1992 ([1994] OJ L/1/3); Case C-239/01 Commission v France [2004] ECR I-9325, concerning Arts 4 and 8 of the Convention for the protection of the Mediterranean Sea against pollution ([1977] OJ L/240/3) and Art 6 of the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources ([1983] OJ L/67/3); and the analysis in Cremona, above n 13, at 144–48. 79

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Adoption of Positions under Mixed Agreements to take action, rules governing such action are not usually put forward, at least not in any greater detail. In this respect, the notable exception is provided by the practical arrangements with regard to the involvement of the Community and the Member States in the Revised 1958 Agreement, where rather detailed rules are laid down for any action taken by the Member States.82 The Internal Agreement concerning the implementation of the ACP–EC Partnership Agreement simply requires a Member State to consult the other Member States and the Commission before invoking Article 98 of the Agreement.83 The Arrangement on preparation for FAO meetings and statements and voting merely establishes a procedure of coordination, with the aim ‘to ensure the highest possible degree of cohesion in statements by Member States on matters within their competence’.84 This has also been the purpose of PROBA 20,85 the WTO Code of Conduct on services86 and the Code of Conduct on the UNESCO negotiations on cultural diversity.87 Apart from the general obligation to follow the coordination procedure with a view to establishing a common position, there are no other, more specific obligations with which the Member States would have to comply before they were entitled to act on their own. Up to relatively recent times, the case law of the Court of Justice on the duties of loyal cooperation between the Community institutions and the Member States has also remained rather general.88 However, there are three more recent judgments where the Court has defined the Member States’ obligations in more concrete terms for present purposes.89 The first two judgments were handed down in infringement proceedings concerning the negotiation, ratification and bringing into force of, as well as the refusal to terminate, by Member States, bilateral agreements with third countries on inland waterway transport.90 In those cases, the Commission accused the Member States concerned, Luxembourg and Germany, not only of infringing the Community’s exclusive competence but also of breaching their obligations under Article 10 of the EC Treaty (now Art 4(3) TEU). More specifically, the Commission argued that the two Member States had failed to comply with their

82

Above n 29. See Art 5 of the Internal Agreement, above n 31. 84 See section 1.10 of the Arrangement, above n 35. 85 Above n 33. 86 Above n 34. 87 Above n 36. 88 See Heliskoski, above n 10, at 66–67. 89 See also Opinion of A-G Poiares Maduro of 1 October 2009 in Case C-246/07 Commission v Sweden, above n 11, concluding that in unilaterally proposing PFOS be added to the annexes to the Stockolm Convention before a Community decision was reached on the matter, Sweden failed to fulfil its obligations under Article 10 EC (now Art 4(3) TEU). 90 Case C-266/03 Commission v Luxembourg [2005] ECR I-4805 and Case C-433/03 Commission v Germany [2005] ECR I-6985. 83

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Joni Heliskoski obligations under Article 10 EC by negotiating, concluding, ratifying and bringing into force the contested bilateral agreements after the Council had authorised the Commission to negotiate a multilateral agreement on behalf of the Community on the same subject. The Court first observed that the ‘duty of genuine cooperation’ provided for in Article 10 EC is ‘of general application’, and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries.91 Referring to its own previous case law,92 the Court then recalled that the Member States are subject to ‘special duties of action and abstention’ in a situation in which the Commission has submitted to the Council proposals which, although they have not been adopted by the Council, represent the point of departure for concerted Community action.93 Having first observed that [t]he adoption of a decision authorising the Commission to negotiate a multilateral agreement on behalf of the Community marks the start of a concerted Community action at international level and requires, for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation between the latter and the Community institutions in order to facilitate the achievement of the Community tasks and to ensure the coherence and consistency of the action and its international representation,94

the Court concluded that [i]n this case it is common ground that after the Council authorised the Commission to negotiate a multilateral agreement on behalf of the Community, by decision of 7 December 1992, the Grand Duchy of Luxembourg negotiated, concluded, ratified and implemented the contested bilateral agreements without cooperating or consulting with the Commission. By acting in that manner that Member State has compromised the achievement of the Community’s task and the attainment of the objectives of the Treaty.95

Hence, to the extent that the Member States concerned had negotiated, concluded, ratified and brought into force the contested agreements without having cooperated or consulted with the Commission, they had failed to fulfil their

91 Commission v Luxembourg, above n 90, paras 57–58, and Commission v Germany, above n 90, paras 63–64. 92 Commission v United Kingdom, above n 21. The difference between the cases (which the Court does not mention) was that in Commission v United Kingdom the Community was recognised to possess an exclusive competence and, due to disagreement in the Council, the Commission proposals had not been adopted. 93 Commission v Luxembourg, above n 90, para 59; Commission v Germany, above n 90, para 65. 94 Ibid, para 60 (emphasis added); ibid, para 66. 95 Commission v Luxembourg, above n 90, para 61 (emphasis added). It emerges from Commission v Germany, above n 90, that it is not sufficient for the consultations with the Commission to take place only at the time of the negotiation and signature of the agreement, if the Member State concerned then proceeds to ratify and implement those agreements without cooperating or consulting with the Commission (see para 68 of the judgment).

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Adoption of Positions under Mixed Agreements obligations under Article 10 of the EC Treaty.96 However, it follows from the paragraphs quoted above that the obligation of the Member States to cooperate and consult with the institutions was triggered as a result of decision of the Council to authorise the Commission to negotiate a multilateral agreement. So the scope for Member State action may not have been as circumscribed prior to the Council’s decision. It also follows from the two judgments that the Member States concerned had not been under an obligation to abstain indefinitely from action, but merely under a requirement to ‘cooperate and consult’ with the Commission before the envisaged action was taken.97 It is true that the two cases did not concern measures taken by a Member State under a mixed agreement. In Commission v Ireland,98 though, to which reference has already been made, the Court of Justice subsequently reached a very similar conclusion. One of the contentions put forward by the Commission in that case was that Ireland had failed to fulfil its obligations under both Article 10 EC (now Art 4(3) TEU) and Article 192 EAEC by bringing the dispute-settlement proceedings unilaterally, without having first informed and consulted the competent Community institutions. The Court set off by recalling, first, the obligations incumbent upon the Member States by virtue of Article 10 EC (and Article 192 EAEC) and, secondly, the obligation of close cooperation between the Community institutions and the Member States in fulfilling the commitments undertaken by them under joint competence when they conclude a mixed agreement.99 Next, it drew attention to two circumstances of the dispute at hand: first, the fact that the disputesettlement proceedings had been brought within an area (the protection and preservation of the marine environment) in which the respective areas of competence of the Community and the Member States are liable to be closely interrelated; secondly, the fact that the Commission’s services had already contended, in a letter to the Irish authorities, that the dispute was a matter falling within the exclusive jurisdiction of the Court of Justice. It followed that, [i]n those circumstances, the obligation of close cooperation within the framework of a mixed agreement involved, on the part of Ireland, a duty to inform and consult the

96

Commission v Luxembourg, above n 90, paras 66–67; Commission v Germany, above n 90, paras

73–74. 97 In this sense, see also Cremona, above n 13, at 164 and (more generally) 168. The cases could be compared to Case 804/79 Commission v United Kingdom, above n 21, where the Court held that ‘a Member State [could not] . . . bring into force any interim conservation measures . . . except as part of a process of collaboration with the Commission’ (para 30). Accordingly, Member States were under ‘not only an obligation to undertake detailed consultations with the Commission and to seek its approval in good faith, but also a duty not to lay down national conservation measures in spite of objections, reservations or conditions which might be formulated by the Commission’ (para 31). 98 MOX Plant, above n 18, paras 157 et seq. 99 Ibid, paras 174–75.

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Joni Heliskoski competent Community institutions prior to instituting dispute-settlement proceedings concerning the MOX plant within the framework of the Convention.100

Since Ireland had brought proceedings under the dispute settlement system set out in UNCLOS without complying with that duty of prior information and consultation, the Court concluded it had failed to comply with its duty of cooperation under Article 10 EC and Article 192 EAEC. It is true that, in the circumstances of the case, the Court of Justice concluded that, by bringing arbitral proceedings under UNCLOS, Ireland had exercised a competence which belonged to the Community (and which it was not for Ireland to exercise).101 However, the question as to the failure of Ireland to inform and consult the competent Community institutions before bringing the disputesettlement procedures was regarded by the Court as distinct from the finding concerning the (unwarranted) exercise of competence. (Had it been otherwise, there would not have been any need to examine the head of complaint concerned.) This means that the principle laid down by the Court in respect of Member State action under a mixed agreement—that is, a duty to inform and consult the competent Union institutions—applies irrespective of the question of the distribution of competence, including situations falling within Member State competence. In this sense, the judgment is also an authority for the view that, save where the Union’s competence is exclusive, Member States are entitled to exercise their competence under a mixed agreement, but that right is subject to a duty to inform and consult with the Union institutions before any action is taken.102 VI.

CONCLUSIONS

The task of stating the law governing the adoption of positions under mixed agreements is characterised by the fact that there are, either in the Treaty or in the secondary law, no general rules that would govern the matter in any greater detail. As a matter of fact, the field of mixed agreements is so diverse that one should not even expect a single set of rules or principles to be capable of capturing all of the legal issues that are bound to arise in respect of the exercise of competence by the Union and the Member States.103 In those (relatively few) cases where rules or principles have been laid down for the purposes of the implementation of a specific agreement, they are often incomplete or their meaning is marked by ambiguity. This is by no means a coincidence. Experience 100 The same duty of prior information and consultation was also imposed on Ireland by virtue of the EAEC Treaty insofar as that Member State contemplated invoking provisions of that Treaty and measures adopted pursuant to it within the framework of the proceedings which it was proposing to bring before the Arbitral Tribunal. See MOX Plant, above n 18, para 180. 101 Ibid, para 171. 102 See Cremona, above n 13, at 168. 103 In this sense, see Koutrakos, above n 19, at 180; Cremona, above n 13, at 164 and 169.

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Adoption of Positions under Mixed Agreements shows that this ‘potential for ambiguity’—that is, that controversial legal questions do not need to be addressed in the abstract—is precisely one of the main reasons why the technique of mixed agreements has proven so successful as a means of organising the Union and the Member States’ external relations. Legal rules and principles are laid down by the Court of Justice, incrementally and ex post facto, only in those (again, relatively rare) cases that give rise to litigation. None the less, there are some key organising categories or principles that should provide the paradigm for any analysis on the implementation of mixed agreements. First, it is crucial to draw the distinction between exclusive and non-exclusive Union competence. Whenever a matter to be addressed falls either wholly or in part within the Union’s exclusive competence, the position to be adopted must be one of the Union. If the exclusive competence of the Union does not cover the matter in its entirety, and the agreement in question does not allow the Union and the Member States to act jointly, regard should probably be had to the prominence of those elements on a given occasion. Of course, when there is disagreement on the matter, this task is likely to be a very difficult one, as illustrated by the case concerning the exercise of voting right in the FAO, for instance.104 On the other hand, in those cases where Union competence arguably exists but is not exclusive, Member States are entitled to exercise their competence provided the Union has not decided to act (in some cases the exercise of Union competence would not prevent the Member States from exercising theirs). In particular, non-exclusive Union competence does not imply a legal requirement of that competence to be exercised jointly with the competence of the Member States. In most cases, the idea of the Union and the Member States ‘sharing’ the exercise of competence is fundamentally alien to the logic of the Court’s case law. Secondly, it is important to bear in mind that the Member States are always required to exercise their competence in accordance with Union law. In particular, it follows from the case law that they are not only required to live up to their duties flowing from Article 4(3) TEU, but that there is also a general obligation of loyal cooperation between the Member States and the institutions of the Union that should be observed in the course of implementation of mixed agreements. More recently, the Court has also specified that those obligations require the Member States, among other things, to collaborate and consult with the institutions (that is, in practice, the Commission) before they establish a national position or otherwise take action under a mixed agreement. So even in the exercise of national competence the Member States are acting firmly within the confines of Union law.

104 Commission v Council, above n 46. The problems that may arise are similar to the ones concerning the choice of an appropriate legal basis for a measure adopted by the Union. For a recent analysis, see P Koutrakos, ‘Legal Basis and Delimitation of Competence in EU External Relations’ in Cremona and de Witte, above n 13, 171.

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8 Disconnection Clauses in EU Law and Practice MARISE CREMONA

I.

INTRODUCTION

D

ISCONNECTION CLAUSES WITHIN an international agreement are designed to protect the autonomy of the Community, and now the Union, legal order by providing that as between EU Member State parties to the agreement, the relevant provisions of Union law shall apply rather than the provisions of the international agreement. Disconnection clauses may be used where the EU is itself a party alongside the Member States (mixed agreements), where the Member States are parties but the EU is not, and even where the EU alone is a party; they have been used extensively in multilateral conventions such as those adopted within the framework of the Council of Europe.1 The foreign policy of EU Member States of course includes their relations, within an international law framework, with other EU Member States. Member States may conclude agreements with some or all of the other Member States, with or without third countries, and with or without the joint participation of the EU itself. The legal implications of inter-Member-State agreements have been explored systematically elsewhere.2 Briefly, we may say that the principle of the primacy of Union law will apply, such that it will take precedence over conflicting norms in inter-Member-State agreements, whether or not these pre-date the EC/EU Treaties or accession to the EC/EU. Thus, Article 351 TFEU (ex Article

1 In what follows, the term ‘Convention’ will generally be used to refer to a multilateral international agreement containing a disconnection clause in order to distinguish it more easily in the text from the EU Treaties. 2 B de Witte, ‘Old-fashioned Flexibility: International Agreements between Member States of the European Union’ in G de Búrca and J Scott (eds), Constitutional Change in the EU—From Uniformity to Flexibility? (Oxford, Hart Publishing, 2000); B de Witte, ‘Chameleonic Member States: Differentiation by Means of Partial and Parallel International Agreements’ in B de Witte, D Hanf and E Vos (eds), The Many Faces of Differentiation in EU Law (Antwerp/Oxford/New York, Intersentia, 2001).

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Disconnection Clauses in EU Law and Practice 307 EC) operates only to protect the interests of third countries, not the Member States.3 In Commission v Italy, for example, the Court held that a Member State could not argue—in its defence to an allegation of a breach of Community law—that its actions were in compliance with GATT rules, relying on Article 307 (then 234) EC: in matters governed by the EEC Treaty, that Treaty takes precedence over agreements concluded between Member States before its entry into force, including agreements made within the framework of GATT.4

Where some or all Member States conclude a Convention with third countries which may impact on the sphere of application of Union law, a particular technique may be used which is designed to ensure the primacy of Union law obligations in relations between the Member States themselves and to render this more transparent to other parties. As Bruno de Witte points out, in the case of open multilateral treaties, such as many of the Council of Europe Conventions, not all Member States may sign and ratify them, or not at the same time. The need for mechanisms to reduce legal differentiation (ie the phenomenon of the Member States being bound by different obligations inter se) is recognised, and the method considered here—the disconnection clause—is one of those options, alongside other procedures mentioned by de Witte, such as encouraging all Member States to ratify the Convention through a Council Recommendation.5 The aim of this chapter is to analyse the different types of disconnection clause, when they are used, their legal effects, and the relationship between disconnection clauses and Union competence. Are disconnection clauses legally necessary? Are they either beneficial or problematic with respect to third country parties to the agreement, or are they (as the EU argues) neutral? Are they facilitative of mixed agreements? Might they even, in protecting the EU acquis, in some cases render exclusive Union competence unnecessary? The discussion here is of disconnection clauses in general, and an answer to the question of whether a disconnection clause is necessary in a given case, or its precise legal effects, will naturally depend on the specific terms of both the Convention and the relevant Union law. In section II. we shall first briefly set out the most common forms of disconnection clause currently used by the EU, together with a Declaration by the EU and its Member States in the case of more recent Council of Europe Conventions. This is followed by a non-exhaustive examination of the types of agreement in which the disconnection clause has been used and some alternative approaches. The following sections then turn to examine the legal effects of 3 Case 812/79 Attorney General v Juan C Burgoa [1980] ECR 2787; Case C-158/91 Criminal proceedings against Jean-Claude Levy [1993] ECR I-4287. 4 Case 10/61 Commission v Italy [1962] ECR 1. 5 See de Witte, ‘Old-fashioned Flexibility: International Agreements between Member States of the European Union’, above n 2, 38–39. See also J Klabbers, ‘Safeguarding the Organizational Acquis: The EU’s External Practice’ (2007) 3 International Organizations Law Review 1.

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Marise Cremona disconnection clauses, from the perspective of the autonomy of the Union legal order (section III.), their use in mixed agreements (section IV.), and their relation to exclusive Union competence (section V.). II.

WHAT IS A DISCONNECTION CLAUSE AND WHEN IS IT USED?

Disconnection clauses used by the EC/EU have developed a standard form: In their mutual relations, Parties which are members of the European Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.6

A more recent version refers also to EU rules: Parties which are members of the European Union shall, in their mutual relations, apply Community and European Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.7

In addition, in the case of more recent Council of Europe Conventions, the EU and Member States have made a Declaration explaining the need for and function of disconnection clauses from an EU perspective. It is worth giving this in full, as it sets out clearly the EU view of the rationale for these clauses as well as the EU’s attempt to reassure non-EU Member State parties that the disconnection clause will not disadvantage them: The European Community/European Union and its Member States reaffirm that their objective in requesting the inclusion of a ‘disconnection clause’ is to take account of the institutional structure of the Union when acceding to international conventions, in particular in case of transfer of sovereign powers from the Member States to the Community. This clause is not aimed at reducing the rights or increasing the obligations of a non-European Union Party vis-à-vis the European Community/European Union and its Member States, inasmuch as the latter are also parties to this Convention. The disconnection clause is necessary for those parts of the Convention which fall within the competence of the Community/Union, in order to indicate that European Union Member States cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union). This does not detract from the fact that the Convention applies fully between the European Community/European Union and its Member States on the one hand, and the other Parties to the Convention, on the other; the Community and 6 Art 27(1) of the European Convention on Transfrontier Television 1989, ETS No 132, as amended by Protocol ETS No 171. 7 Council of Europe Convention on the Prevention of Terrorism 2005, CETS No 196, Art 26(3).

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Disconnection Clauses in EU Law and Practice the European Union Members States will be bound by the Convention and will apply it like any Party to the Convention, if necessary, through Community/Union legislation. They will thus guarantee the full respect of the Convention’s provisions vis-à-vis non-European Union Parties.8

Although disconnection clauses are not the only way of preserving the autonomy of the Union legal order,9 they have been used in a variety of types of agreement, in particular but not only in Conventions concluded within the framework of the Council of Europe. Since the disconnection clause is concerned with operation of an agreement as between the EU Member States, one might think that it is only necessary where the Member States are themselves parties to the agreement, with or without the Union. However, there are cases where a disconnection or a similar clause has been deemed necessary even in an agreement to which the EU alone is a party. Nevertheless, it is in Conventions concluded—or open to conclusion—by both the Member States and the EU that standard disconnection clauses are most often found, and it is possible to identify different contexts in which a disconnection clause is seen to be appropriate: cases where the Convention essentially aims to extend the acquis to a wider group of countries; Conventions designed to establish a regulatory framework which will operate in parallel to the Union acquis; cases where the Convention is designed to supplement or add to what has been achieved by the parties in other agreements, or at Union level. The following is by no means an exhaustive compilation of all disconnection clauses in mixed, or potentially mixed, agreements; it is intended to illustrate the range of types of clause and types of Convention in which they might be used.10

8 See, eg, the Declaration made in respect of Art 26(3) of the Council of Europe Convention on the Prevention of Terrorism 2005, CETS No 196. The Explanatory Report to the Convention adopted by the Committee of Ministers refers to this Declaration: ‘As an instrument made in connection with the conclusion of a treaty, within the meaning of Article 31, para 2(b) of the Vienna Convention on the Law of Treaties, this declaration forms part of the “context” of the Convention. The European Community would be in a position to provide, for the sole purpose of transparency, necessary information about the division of competence between the Community and its Member States in the area covered by the present Convention, inasmuch as this does not lead to additional obligations placed on the Community.’ (Explanatory Memorandum, paras 272–73). 9 Klabbers discusses disconnection clauses as one way ‘to defend the acquis against being undermined from the outside’, alongside conflict and priority clauses, non-affect clauses, conditional territorial application clauses, and even declarations of competence: Klabbers, above n 5, at 2. See also J Klabbers, Treaty Conflict and the European Union (Cambridge, Cambridge University Press, 2008) 219–23. Tell argues that the provisions in the Vienna Convention on the Law of Treaties are ‘too strict or inappropriate’ and that the disconnection clause is ‘a surer means to guarantee the interests of the Community’: O Tell, ‘La “Disconnecting Clause”—Disconnection Clause’ UIA seminar paper, Edinburgh, 20–21 April 2001, available at . On this point see also 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: . 10 For a typology of disconnection clauses, see C P Economidès and A G Kolliopoulos, ‘La clause de deconnexion en faveur du droit communautaire: une pratique critiquable’ (2006) 110 Revue Générale de Droit International Public 273 at 274–78.

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Marise Cremona A. ‘Without prejudice’ and ‘non-affect’ clauses A number of Council of Europe Conventions from the 1970s and 1980s include not a specific EC disconnection clause, but a general ‘without prejudice’ clause. So, for example, the European Convention on the Legal Status of Migrant Workers of 1977 provides that laws of or other treaties between the Contracting Parties may apply insofar as they offer more favourable treatment to the persons protected by the Convention.11 A similar provision is found in the European Social Charter.12 The Convention on the Custody of Children of 1980 allows Contracting States to apply between themselves, subject to notification, ‘uniform laws in relation to custody of children’ or a ‘special system of recognition or enforcement of decisions in this field’.13 A similar provision exists in the European Convention on offences relating to cultural property of 1985.14 Apart from the fact that these clauses are not limited to the EC, these Conventions, at least when drafted, did not overlap with an already existing EC acquis. The Lugano Convention of 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, differs on both these counts, extending to third State parties a regime close to that established by the Brussels Convention,15 while including a ‘without prejudice’ clause specific to the EC: This Convention shall not prejudice the application by the Member States of the European Communities of the … ‘Brussels Convention’.16

11 CETS No 093, Art 32: ‘The provisions of this Convention shall not prejudice the provisions of the laws of the Contracting Parties or of any bilateral or multilateral treaties, conventions, agreements or arrangements, as well as the steps taken to implement them, which are already in force, or may come into force, and under which more favourable treatment has been, or would be, accorded to the persons protected by the Convention.’ 12 European Social Charter, revised, 1996, CETS No 163, Art H: ‘The provisions of this Charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected.’ 13 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children 1980, CETS No 105, Art 20(2): ‘When two or more Contracting States have enacted uniform laws in relation to custody of children or created a special system of recognition or enforcement of decisions in this field, or if they should do so in the future, they shall be free to apply, between themselves, those laws or that system in place of this Convention or any part of it. In order to avail themselves of this provision the State shall notify their decision to the Secretary General of the Council of Europe. Any alteration or revocation of this decision must also be notified.’ 14 European Convention on offences relating to cultural property 1985, CETS No 119, Art 34 (this Convention is not in force). 15 Convention on jurisdiction and the enforcement of judgments in civil and commercial matters concluded at Brussels on 27 September 1968, as amended, [1997] OJ C/15/1. 16 The Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988, [1988] OJ L/319/9, Art 54B(1).

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Disconnection Clauses in EU Law and Practice The revised Lugano Convention (Lugano II), which was concluded by the Community alone following Opinion 1/03 of the European Court of Justice,17 is designed to extend the regime of Regulation 44/2001/EC (the ‘Brussels Regulation’) on jurisdiction and enforcement of judgments in civil and commercial matters to the EFTA States Iceland, Norway and Switzerland.18 Article 64(1) of Lugano II provides that it ‘shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 44/2001’.19 The need for this provision, despite the fact that competence to conclude the Convention is exclusive,20 can be seen when one considers that under Article 1(3) of Lugano II the term ‘State bound by this Convention’, which is used to establish the rules of jurisdiction and enforcement of judgments, is defined to include the Member States of the European Community. The Convention on Information and Legal Co-operation concerning ‘Information Society Services’21 contains a ‘non affect’ rather than a disconnection clause. Article 6(1) provides generally that ‘This Convention shall not affect any international instrument which is binding on the Parties and which contains provisions on matters governed by this Convention’, and the Council of Europe’s Explanatory Report on the Convention points out that In the light of [this provision] the member States of the European Community and of the Economic European Area do not apply the present instrument in their mutual relations concerning matters governed by this Convention.22

The formulation of some provisions of this type makes it clear that the application of alternative treaty provisions or rules is not compulsory. The Council of Europe’s Convention on Cybercrime of 2001 contains a clause which allows, but does not require, parties which have concluded a treaty on matters governed by the Convention, or which ‘have otherwise established their relations on such matters’, to regulate their mutual relations accordingly.23

17 In Opinion 1/03 Lugano Convention [2006] ECR I-1145, the Court of Justice held that EC competence to conclude the revised Lugano Convention was exclusive. 18 Council Decision 2007/712/EC, [2007] OJ L/339/1. 19 Art 64 of Lugano II also refers to the application of the 1968 Brussels Convention and the 2005 Agreement ([2005] OJ L/299/61) between the EC and Denmark, which is designed to extend the regime established by Reg 44/2001 to Denmark. Denmark, not being bound by the Council Decision concluding the Lugano II Convention, is a party to that Convention in its own right. 20 Opinion 1/03, above n 17. On the link between disconnection clauses and exclusivity, see section V. below. 21 Convention on Information and Legal Co-operation concerning ’Information Society Services’ 2001, ETS No 180. 22 Ibid, Explanatory Report, para 23. 23 Convention on Cybercrime 2001, CETS No 185, Art 39(2) provides: ‘If two or more Parties have already concluded an agreement or treaty on the matters dealt with in this Convention or have otherwise established their relations on such matters, or should they in future do so, they shall also be entitled to apply that agreement or treaty or to regulate those relations accordingly. However, where Parties establish their relations in respect of the matters dealt with in the present Convention other than as regulated therein, they shall do so in a manner that is not inconsistent with the Convention’s objectives and principles.’

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Marise Cremona The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 contains a slightly different type of clause: Contracting States which are members of regional or economic integration organisations may declare that they will apply between themselves the ‘internal rules’ of the organisation rather than the provisions of the Convention, ‘the scope of application of which coincides with that of those rules’.24 Thirteen EU Member States are party to the Convention, of which five have made a declaration to this effect.25 Norway has also made such a declaration in its capacity as a member of EFTA and party to the European Economic Area Agreement. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property contains a similar provision; in this case 20 EU Member States are Parties to the Convention, but only the UK has made a declaration—made when it ratified the Convention in 2002. The UK, having stated that it interprets the term ‘cultural property’ in line with the definition in the relevant EU legislation, then states that As between EC member states, the United Kingdom shall apply the relevant EC legislation to the extent that that legislation covers matters to which the Convention applies.26

The UK thus asserts an identity of scope between the Convention and EC law, and then in effect creates a disconnection clause as regards its own position vis-à-vis other EU Member States. Could it be argued that in such cases, where there is no automatic disconnection clause but where a declaration is an option, Member States are under a Union law obligation to make such a declaration, at least in cases where there is an internal Union acquis? If we consider the effects in and on Union law of not making such a declaration, the answer seems to be no: a failure to make a declaration would not alter the Union law obligation whereby Union law takes precedence as regards Member States’ relations inter se27; it is hard, therefore, to argue that a Member State is in breach of its obligations under Union law by failing to make a declaration. However, the position will of course be different where the Council adopts a Decision requiring Member States to make a Declaration of this kind. In 2002 the Council adopted a Decision authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on Parental Responsibility, which had been concluded within the framework of the Hague Conference on

24 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, Rome, 24 June 1995, Art 13(3). 25 Greece, Finland, Italy, The Netherlands and Spain have made declarations under Art 13(3). Cyprus, France, Hungary, Lithuania, Portugal, Romania, Slovakia and Slovenia have not done so. 26 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, letter, United Kingdom of Great Britain and Northern Ireland, LA/Depositary/2002/31. 27 See text above at n 3.

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Disconnection Clauses in EU Law and Practice Private International Law.28 As the Council Decision states, although this was a Convention to which the EC was not permitted to accede, aspects of the Convention fall within the scope of Community secondary legislation, and the Convention contains a ‘non affect’ clause with respect to any international instrument to which Contracting States are parties as well as agreements between the Contracting Parties containing provisions on matters governed by the Convention, while also making it clear that such agreements ‘do not affect, in the relationship of such States with other Contracting States, the application of the provisions of this Convention’.29 The Council, in authorising the Member States to sign the Convention, required them to make a declaration on the application of the ‘relevant internal rules of Community law’.30 In this case, then, the Convention itself did not expressly provide for a declaration, but the Council made a declaration a condition of Member States’ signature in a case where the Convention fell as least partly within exclusive Community competence.31 Declarations have sometimes been used as an alternative to a disconnection clause in the case of mixed agreements, where the Community is a party alongside the Member States. In acceding to the UNESCO Convention on Cultural Diversity, for example, the EU made the following declaration alongside its declaration of competences: As regards the Community competences described in the Declaration pursuant to Article 27(3)(c) of the Convention, the Community is bound by the Convention and 28 Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, [2003] OJ L/48/1. 29 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, Art 52. 30 Art 2 of Decision 2003/93/EC provides: ‘When signing the Convention, Member States shall make the following declaration: “Articles 23, 26 and 52 of the Convention allow Contracting Parties a degree of flexibility in order to apply a simple and rapid regime for the recognition and enforcement of judgments. The Community rules provide for a system of recognition and enforcement which is at least as favourable as the rules laid down in the Convention. Accordingly, a judgment given in a Court of a Member State of the European Union, in respect of a matter relating to the Convention, shall be recognised and enforced in [the Member State making the declaration] by application of the relevant internal rules of Community law [with special reference to Regulation 1347/2000/EC].” ’ At the time of writing, 26 Member States were party (all except Malta) and 21 Member States had made the required declaration. 31 The international law import of such declarations will be affected by whether they are envisaged in the Convention itself, as well as the nature of the obligations contained therein. The Cape Town Convention of 2001 on International Interests in Mobile Equipment and its Protocol on aircraft equipment include a REIO clause but not a disconnection clause; in its proposal for a Decision to accede to the Convention and Protocol, however, the Commission explains that the Convention provides sufficient flexibility by way of optional Declarations to enable the Member States to apply Community rules where necessary: Amended Proposal for a Council Decision on the conclusion by the EC of the Convention on International Interests in Mobile Equipment and its Protocol on matters specific to aircraft equipment, adopted jointly in Cape Town on 16 November 2001, COM (2008) 508, 11 August 2008. For another example see Council Decision 2002/762/EC authorising the Member States, in the interest of the Community, to sign, ratify or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (the Bunkers Convention) [2002] OJ L/256/7.

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Marise Cremona will ensure its due implementation. It follows that the Member States of the Community which are party to the Convention in their mutual relations apply the provisions of the Convention in accordance with the Community’s internal rules and without prejudice to appropriate amendments being made to these rules.32

The distinctive characteristics of the current standard disconnection clause as compared with the permissive ‘without prejudice’ clauses or optional declarations lie in its automatic effect and the fact that it does not merely allow the EU Member States to apply Union/Community law but requires them to do so. At the time when the Cybercrime Convention was being drafted, the Commission argued that a clause which merely allows the Member States to apply Community law as between themselves (as provided in Article 39(2) of that agreement33) is inadequate for the EU both because it does not refer to the EU specifically and because it is an enabling clause which does not therefore make it clear that Member States are under an obligation to apply Community law inter se. In section III. we shall consider more fully the legal effects of disconnection clauses.

B.

The ‘standard’ disconnection clause

The disconnection clause in the sense discussed in this chapter appears in the late 1980s in Council of Europe Conventions dealing with issues falling within the scope of EC law and practice. One of the first (perhaps the first) such clause appears in the Convention on Mutual Administrative Assistance in Tax Matters of 1988: Notwithstanding the rules of the present Convention, those Parties which are members of the European Economic Community shall apply in their mutual relations the common rules in force in that Community.34

A Protocol of 1991 also added a disconnection clause in the standard form given above to the Convention on Insider Trading.35 In both these cases there may be overlap between the provisions of the Convention and the—sometimes more specific—obligations of Union law, although the Conventions are not designed to replicate Union law.

32 33 34

Council Decision 2006/515/EC, [2006] OJ L/201/15, Annex 2. See above, n 23. For the Commission’s view, see SEC(2001) 315. Convention on Mutual Administrative Assistance in Tax Matters 1988, CETS No 127, Art

27(2). 35 Convention on Insider Trading 1989, CETS No 130, as amended by Protocol CETS No 133, 1991, Art 16bis. This clause is in the same form as that contained in the European Convention on Transfrontier Television, cited in the text at n 6.

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Disconnection Clauses in EU Law and Practice Somewhat unusually, the European Convention on Transfrontier Television36 establishes rules very close to those of the Television without Frontiers Directive37 and has been amended by Protocol in line with the Directive. It contains both a minimum clause and a standard older form of disconnection clause.38 The Convention is therefore designed to establish a consistent regime between EU Member States and other States, and the disconnection clause ensures both that amendments to the Directive will apply to the Member States even if not incorporated into a revised Convention, and also that EU Treaty rules will apply as a legal context for and in default of the more specific rules in the Directive.39 The mixed agreement establishing a European Common Aviation Area (ECAA) between the EC and its Member States, Norway, Iceland, and the Western Balkan States is intended essentially to extend the EC’s legislative regime in respect of air services to a group of non-Member countries.40 The ECAA does not contain a standard disconnection clause, but its Article 5 provides that ‘The provisions of this Agreement shall not affect the relations between the Contracting Parties of the EEA Agreement.’ Thus it is not only the internal Community regime but also the EEA regime—which contains its own mechanisms to ensure its continued homogeneity with Community law—which is ‘disconnected’ from the ECAA regime. In other cases, a Convention is designed to establish a specific regime, while recognising the existence of other bilateral and multilateral agreements in the field. So, for example, the 2005 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism41 builds upon an earlier Council of Europe Convention on money laundering,42 as well as being designed to support the implementation of the International Convention for the Suppression of the Financing of Terrorism. The EU’s moneylaundering (and latterly also terrorist finance) regime has developed in parallel to

36 European Convention on Transfrontier Television 1989, ETS No 132, as amended by Protocol ETS No 171; for the disconnection clause, see Art 27(1). 37 Council Directive 89/552/EEC of 3 October 1989 concerning the pursuit of television broadcasting activities, [1989] OJ L/298/23, as amended by Directive 97/36/EC of 19 June 1997, [1997] OJ L/202/60. 38 See text at n 6. 39 See, eg, Case C-34–36/95 De Agostini & TV-Shop [1997] ECR I-3843. 40 Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo on the establishment of a European Common Aviation Area, [2006] OJ L/285/1. The ECAA regime is said in its Preamble to be ‘based upon’ the relevant EC legislation, and provision is made to accommodate changes and additions to EC legislation (Art 17 ECAA). 41 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism 2005, CETS No 198. 42 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime 1990, ETS No 141. As between its parties the 2005 Convention replaces the 1990 Convention: CETS No 198, Art 49(6).

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Marise Cremona international initiatives and instruments,43 and the third money-laundering Directive mentions in its Preamble the need to be consistent with international standards, especially the Recommendations of the Financial Action Task Force (FATF).44 Thus, a disconnection clause in the standard form appears in the 2005 Convention alongside more general clauses dealing with the relationship between the 2005 Convention and other international instruments.45 The Council of Europe Convention on Action against Trafficking in Human Beings not only states in its Preamble that it is designed to ‘improve the protection’ and ‘develop the standards’ established by the Protocol on trafficking in persons to the Palermo Convention on Transnational Organised Crime, it also refers expressly to EU and EC legal instruments.46 The disconnection clause is of the newer style which includes a reference to EU as well as EC rules.47 The Council of Europe Convention on the Prevention of Terrorism48 is also intended to be supplementary to other agreements between the parties, and the disconnection clause appears in the context of a more general provision on the relationship between the Convention and other international agreements. Thus, as well as the newer form of disconnection clause,49 Article 26 contains explicit references to earlier Conventions between the Parties, including the European Convention on Mutual Assistance in Criminal Matters and the European Convention on the Suppression of Terrorism,50 and a provision for the parties to regulate their relations according to existing or future agreements or regulations, subject to the obligation to act consistently with the Convention’s objectives and principles.51

43 See further V Mitsilegas and B Gilmore, ‘The EU legislative framework against money laundering and terrorist finance: A critical analysis in the light of evolving global standards’ (2007) 56 ICLQ 119. 44 Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, [2005] OJ L/309/15, Preamble, para 5. 45 CETS No 198, Art 52(4). 46 Council of Europe Convention on Action against Trafficking in Human Beings 2005, CETS No 197. The instruments referred to in the Preamble are the Framework Decision of 19 July 2002 on combating trafficking in human beings, the Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, and Council Directive of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings. 47 Council of Europe Convention on Action against Trafficking in Human Beings 2005, CETS No 197, Art 40(3). See also Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007, CETS No 201, Art 43(3). 48 Council of Europe Convention on the Prevention of Terrorism 2005, CETS No 196. 49 Convention on the Prevention of Terrorism 2005, CETS No 196, Art 26(3); see text at n 7. 50 Convention on the Prevention of Terrorism 2005, CETS No 196, Art 26(1). 51 Convention on the Prevention of Terrorism 2005, CETS No 196, Art 26(2); for an equivalent provision in the Convention on Cybercrime, see n 23.

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Disconnection Clauses in EU Law and Practice III.

THE LEGAL EFFECT OF THE DISCONNECTION CLAUSE AND THE AUTONOMY OF THE UNION LEGAL ORDER

The disconnection clause recognises that the Member States are part of the Union legal order, and as such Community and Union law obligations will apply as between themselves, notwithstanding the commitments they take on with respect to third States. The EU’s Declaration attached to more recent Conventions where the disconnection clause has been used expresses this idea that ‘the EC/EU and its Member States’ are to be regarded as linked to each other rather than completely independent vis-à-vis other Parties: … the Convention applies fully between the European Community/European Union and its Member States on the one hand, and the other Parties to the Convention, on the other.

So although the Member States conclude the agreement independently, their status as members of the EU is recognised and the primacy of Union law takes effect in derogation from the normal priority given to provisions of a later treaty as between States parties to both.52 The more recent version of the disconnection clause refers to both Community and Union rules. It is significant that the Union legal order is given the same ‘protection’ of its autonomy as the Community legal order. Union law therefore does not apply between Member States as merely another international legal obligation. Since the disconnection clause is, for the Member States, an expression of the primacy of Community law, we could argue that this extension of the clause to include Union law is indicative of at least a degree of primacy inherent in Union law obligations too. The earlier version of the clause does not give Member States a choice: they shall not apply the Convention rules between themselves except in so far as there is no Community rule governing the particular subject concerned. Thus the application of the Convention between the Member States appears as an exception to the general rule of non-application. The later version is more nuanced, being phrased in positive rather than negative terms. It does not prohibit the Member States from applying the Convention inter se, it merely states that Member States will apply Community/Union rules in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case. It will not always be straightforward to determine which of the Convention rules concern a subject governed by Union rules and which do not (this being one advantage of the generality of the clause). How narrowly or broadly are ‘the particular subject’ and ‘the specific case’ to be construed? Nevertheless, the clause

52

Vienna Convention on the Law of Treaties 1969, Art 30(3) and (4).

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Marise Cremona operates automatically; it does not have to be specifically invoked.53 The scope of EC/EU law will evolve over time, and the clause allows for this. The EU Declaration derives from the clause a rather more general proposition, that EU Member States ‘cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union)’.54 In fact, according to the Court of Justice, a Union law obligation arises for Member States that are party to a mixed agreement which falls ‘in large measure’ within Union competence. The Court has held that the Member States’ obligations flow not only directly from the agreement itself, but also as a matter of Union law from Article 216(2) TFEU (ex Article 300(7) EC); thus the Commission may in fact ‘invoke … obligations deriving from the Convention’ in bringing an infringement action against a Member State which has failed to fulfil an obligation under a mixed agreement.55 Although the cases in which such action has been taken by the Commission do not concern agreements with a disconnection clause,56 there is no suggestion that the presence of such a clause would preclude enforcement actions of this kind. The disconnection clause does not depend on a conflict existing between the Convention rule and Union law; it is there to protect the autonomy of the Community/Union legal order per se. Nevertheless, the disconnection clause can also be seen as a mechanism for the protection of the Union acquis from possible conflict with international law norms,57 so that a Member State is prevented from being put into a position of having to choose whether to apply, in its relation with another Member State, a Union law norm or a provision of another international agreement to which they are both parties.58 Indeed, as such it is an expression within an international law context of the loyalty obligation found in Article 4(3) TEU (ex Article 10 EC); by inserting the disconnection clause, the Member States are ensuring that they will not be obliged by international law to set aside their Union law obligations. Thus the disconnection clause is a substantive counterpart to the obligation expressed in Article 344 TFEU (ex Article 292 EC), whereby Member States undertake not to submit inter se disputes concerning the interpretation or

53

Economidès and Kolliopoulos, above n 10, at 275. See text at n 8 (emphasis added). 55 Where a mixed agreement creates rights and obligations in a field covered ‘in large measure’ by Community legislation, ‘there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.’ Case C-239/03 Commission v France (Étang de Berre) [2004] ECR I-9325, para 29. 56 The Convention for the protection of the Mediterranean Sea against pollution, signed at Barcelona on 16 February 1976, and the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, signed at Athens on 17 May 1980, in Case C-239/03, n 55 above; the EEA Agreement in Case C-13/00 Commission v Ireland [2002] ECR I-2943. 57 Klabbers, above n 9, which examines disconnection clauses in the context of other types of clause used to protect the acquis. 58 See Case C-222/94 Commission v United Kingdom [1996] ECR I-4025, discussed below at n 68. 54

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Disconnection Clauses in EU Law and Practice application of the EU Treaty to external dispute settlement processes. In the MOX Plant case the Court clearly expressed the obligation flowing from Article 292 EC in these terms: an international agreement cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal system, compliance with which the Court ensures under Article 220 EC. That exclusive jurisdiction of the Court is confirmed by Article 292 EC, by which Member States undertake not to submit a dispute concerning the interpretation or application of the EC Treaty to any method of settlement other than those provided for therein …59

This suggests an alternative approach to the issue in MOX Plant, which would have arrived at the same end result but by a more logical route than that adopted by the Commission and the Court of Justice. It will be recalled that the Commission had brought an action against Ireland arguing that it was in breach of its obligations under Articles 292 and 10 EC (now Articles 344 TFEU and 4(3) TEU) by instituting dispute-settlement proceedings against the United Kingdom under the United Nations Convention on the Law of the Sea (UNCLOS). The Court, in order to determine whether Article 292 applied, turned to the Declaration of Competence attached to the UNCLOS on the grounds that it was only insofar as the EC concluded the UNCLOS that the agreement could be said to be within the scope of Community law60: 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. It follows that 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. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State’s compliance with them.61

However, as I have argued elsewhere,62 the Declaration of Competence is designed for third States; it is designed to indicate who has primary responsibility for implementation of the Convention, based on competence. The disconnection clause, on the other hand, indicates to other Contracting Parties that the agreement is one in which there is a Union competence and Union rules to apply, but does not give any indication of the scope or nature of Union competence, or 59

Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. The Commission argued that the dispute between Ireland and the UK concerned provisions of the Convention falling within the scope of Community competence and therefore within the Court’s exclusive jurisdiction under Art 292 EC: ibid, para 61. 61 MOX Plant, above n 59, paras 120–21. 62 M Cremona, ‘Defending the Community Interest: the Duties of Cooperation and Compliance’ in M Cremona and B de Witte, EU Foreign Relations Law—Constitutional Fundamentals (Oxford, Hart Publishing, 2008). 60

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Marise Cremona in what way it might have been exercised. The scope of Article 344 TFEU, in terms both of its wording and its purpose, should not be based on whether or not the EU has decided to exercise its competence in concluding an agreement but on whether the provisions of the agreement fall within the scope of Union law. For that purpose, the disconnection clause which signals the existence of Union law in the field is a more useful tool; it confirms that insofar as there are Union rules in place, they should apply between the Member States, and thus disputes concerning those provisions of a Convention that covers matters ‘governed by’ Community rules should also be submitted to the Court of Justice under Article 344 TFEU (ex Article 292 EC). In the case of UNCLOS there was no disconnection clause, but the Court could, on the basis of Article 344 TFEU (ex Article 292 EC), have followed the same line of reasoning. Nothing is said in the disconnection clause as to the nature of the Union rule or its relation to the Convention. This is in line with the idea of the disconnection clause as preserving the autonomy of the Union legal order—Union law will apply between the Member States no matter what the alternative rule provides and whether or not there is a conflict. However, the relationship between the two rules may give rise to questions, and the two versions of the disconnection clause differ somewhat here. If there is a Union rule which (for example) establishes a standard higher than the Convention rule, there should be no difficulty. What if, however, the Union rule imposes a lower standard? With respect to other Parties, the higher-standard Convention rule will apply, and if the Union rule (such as an environmental rule) incorporates a ‘minimum clause’ then there may be no problem, as the Member States will be free in terms of Union law to follow the higher standard set by the Convention. Indeed, in the more recent version of the disconnection clause, EC/EU law is to apply without prejudice to the object and purpose of the present Convention—this might imply that the Member States are obliged to apply the higher Convention standards as between themselves insofar as that is permitted under EU law. This is logical but does not fit well with the EU’s Declaration, which rather reflects the original version of the clause which states that the Convention shall not apply between the Member States: ‘Member States cannot invoke and apply the rights and obligations deriving from the Convention directly among themselves (or between themselves and the European Community/Union)’. And what if Union law, imposing a lower standard, does not allow such flexibility? If it means that EU Member States have signed up to international standards which they then do not meet in their own mutual relations, such a scenario may be unacceptable to third country Parties, and indeed it seems that sometimes other Parties are not happy to include a disconnection clause which seems to offer a special type of derogation to EU Member States. The phrase in the newer version of the disconnection clause—without prejudice to the object and purpose of the present Convention— reflects this concern, but it is not clear exactly what ‘without prejudice’ would mean here; it does not seem to be intended to 174

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Disconnection Clauses in EU Law and Practice bridge the ‘disconnection’ in such cases, since that would render the disconnection highly conditional. In fact, if the Convention is concluded as a mixed agreement then the Union, as a Party, will be under an obligation to bring its standards into line with those of the Convention. However, where the Union is not a Party, no such obligation arises; here, the disconnection clause is important in order to preserve the Union rule, but in practical terms (depending on the subject matter of the Convention) it may not be possible for the Member States to apply different standards ‘in their mutual relations’ from those applied in their relations with other Contracting Parties. This raises the question of the extent to which, if at all, other Contracting Parties are disadvantaged by the disconnection clause. The disconnection clause provides that Union rules apply in the mutual relations of the Member States. Thus, the clause does not exempt the Member States from applying the Convention rules with respect to other Parties. This point is made more explicit in more recent disconnection clauses, which add the phrase ‘without prejudice to its full application with other Parties’. As the EC’s Declaration says, the Convention will apply fully between EC/EU and its Member States on the one hand and the other Parties on the other.63 The disconnection clause thus avoids legal differentiation between EU Member States (if, as is often the case, some Member States are party but some are not) but produces legal differentiation between the Parties to the Convention. A Member State Party will apply one rule in relations with another Member State Party and a different rule in relations with a third State Party. As Lickova has pointed out, ‘one can ask whether it will always be easy to draw a clear line between “legal relations between EU Member States inter se”, on the one hand, and their relations towards third states, on the other.’64 In itself such differentiation may be problematic, and disconnection clauses have been criticised for contributing to the fragmentation of international law and undermining the object of multilateral Conventions, which is generally to establish a set of agreed norms applicable to all parties.65 Klabbers, for example, comments: ‘Chances are that the larger convention is more specialized than Union law on the topic, more up-to-date, and comes with a 63 The Explanatory Report to the Convention on Insider Trading (see n 35) also makes this point, although it does not appear in the older form of disconnection clause added by Protocol to the Convention in 1991: ‘Since it governs exclusively the internal relations between the Parties members of the European Economic Community, this paragraph is without prejudice to the application of this Convention between those Parties and Parties which are not members of the European Economic Community.’ 64 M Licková, ‘European Exceptionalism in International Law’ (2008) 19 EJIL 463, at 486. 65 Licková, ibid, at 486, comments: ‘Some multilateral treaties regulate subjects such as the prevention of arms sales or illegal drug trafficking, and their efficiency clearly depends on the cooperation of all parties involved. Any fragmentation of the established regime may thus threaten the success of this objective.’ See also R Brillat, ‘La Participation de la Communauté Européenne aux Conventions du Conseil de l’Europe’ (1991) XXXVII Annuaire Francais de Droit International 819 at 829; Economidès and Kolliopoulos, above n 10, at 299–300; M Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Doc A/CN.4/L.682, paras 289–94.

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Marise Cremona more appropriate monitoring mechanism.’66 More concretely it means that the disconnection clause should not be used in cases where it does not make sense to differentiate between obligations owed to different Parties, where the aim of a Convention is to establish a set of common rules applicable to all Parties, especially where the common rules are intended to have an ‘internal’ scope of operation.67 Care is needed, however, where the common rules are an extension of the acquis to third countries. We need to distinguish between cases where the acquis itself offers complete or near-complete harmonisation and cases where it does not. If the harmonisation extended to third-country Parties is itself only partial then a disconnection clause which makes it clear that the Convention is not intended to replace the Treaty rules between the Member States may well be appropriate. So, for example, in the case of the Transfrontier Television Convention, efforts have been made to keep the Convention rules and the Union rules in line with each other and thus reduce the risk of legal differentiation, but the disconnection clause is there to ensure the integrity of the Union acquis as it develops and to allow primary Treaty rules to apply between Member States in cases not covered by harmonising legislation. The Court of Justice has indeed refused to accept an argument that a provision of the Television Without Frontiers Directive should be interpreted so as to ensure convergence with the Convention, on the familiar ground that the two instruments pursue different objectives. Further, in answer to the plea that such a result ‘would clearly place Member States in an impossible situation by requiring them to infringe their legal obligations either at international or at Community level’ the Court simply pointed to the disconnection clause in the Convention.68 If, on the other hand, there is complete harmonisation, the disconnection clause may in some cases be unnecessary: if complete harmonisation leads to exclusive Union competence and Union participation in the Convention, the Union will then, by virtue of being a Party, ensure that the Union acquis reflects Convention obligations. The Commission in the Lugano case argued that in cases where an international Convention has as its object to extend the Community system to non-member countries, ‘since the agreement envisaged covers areas where there has been complete harmonisation of the Community rules, the

66

Klabbers, above n 5, at 25. An example of this might be the EEA Agreement, which aims at the creation of ‘a homogeneous European Economic Area’ and does not contain a disconnection clause; instead, the definition of the Contracting Parties allows for the Community and Member States, where appropriate, to be treated as one Party; under Art 2(c): ‘the term “Contracting Parties” means, concerning the Community and the EC Member States, the Community and the EC Member States, or the Community, or the EC Member States. The meaning to be attributed to this expression in each case is to be deduced from the relevant provisions of this Agreement and from the respective competences of the Community and the EC Member States’. 68 Case C-222/94 Commission v United Kingdom [1996] ECR I-4025, paras 49–53. 67

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Disconnection Clauses in EU Law and Practice existence of a disconnection clause is wholly irrelevant.’69 However, as Lugano II demonstrates, in such cases it may still be necessary to include at least a ‘without prejudice’ clause. The revised Lugano Convention was signed, following the ruling in Opinion 1/03 that competence in this case was exclusive, by the Community alone.70 Nevertheless, Article 64(1) provides: This Convention shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as well as any amendments thereof, [and of the Brussels Convention as amended, as well as of the Agreement between the EC and Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 2005].

Why is this thought to be necessary? Article 1(3) of the Convention provides: In this Convention, the term ’State bound by this Convention’ shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community.

Thus it is made clear—as is also clear from Article 216(2) TFEU (ex Article 300(7) EC)—that the Member States are bound by the Convention. It is then necessary to ensure that when the Convention refers (as it frequently does) to situations concerning two ‘States bound by this Convention’, and where both of the States in question are EU Member States, Regulation 44/2001 will apply rather than the Convention.71 Article 64(1) achieves this. In addition, there are limits to the degree of homogeneity achievable even where a Convention is intended to extend the acquis, since the Court’s interpretation of the Union acquis may not be applied to the Convention by non-Member State Parties, and the Court of Justice will have jurisdiction to interpret the Convention only in respect of the Union and Member States, not third countries.72 This last point may be used, however, to illustrate the benefit that a disconnection clause may in some circumstances give to a non-Member State Party. The

69 Opinion 1/03, above n 17, para 84. This point also raises the issue of the relationship between the disconnection clause and exclusivity, considered below in section V. 70 Council Decision 2007/712/EC of 15 October 2007 on the signing, on behalf of the Community, of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L/339/1. See also Proposal for a Council Decision concerning the conclusion of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (2008) 116. 71 The common rules of jurisdiction established by the Regulation apply to defendants domiciled in a Member State (note the special position of Denmark). 72 The ECAA Agreement, referred to above n 40, is unusual in providing for references to the ECJ from the courts of non-Member State Parties as well as for the interpretation of the agreement’s clauses in line with existing case law of the Court of Justice in order to ensure as uniform an interpretation as possible; see discussion in Opinion 1/00, European Common Aviation Area, [2002] ECR I-3493.

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Marise Cremona 2005 Convention on Choice of Court Agreements, negotiated within the framework of the Hague Conference on Private International Law,73 contains a ‘REIO clause’, allowing a Regional Economic Integration Organisation to accede to the Convention either with or without its Member States.74 The Convention was negotiated over a long period of time which in part coincided with the process whereby the EU’s ‘Brussels Convention’ on jurisdiction and enforcement of judgments75 was being revised and transformed into the ‘Brussels Regulation’.76 The disconnection clause in this case, which applies only to REIOs that are party to the Convention, reflects the special nature of the scope of application of jurisdiction rules: This Convention shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention, whether adopted before or after this Convention— a)

where none of the parties is resident in a Contracting State that is not a Member State of the Regional Economic Integration Organisation;

b)

as concerns the recognition or enforcement of judgments as between Member States of the Regional Economic Integration Organisation.77

Were the EU to accede to the Choice of Court Convention, this provision would ensure that a Party who is not resident in an EU Member State (for example, a US company) would be subject to the Convention rules (including, for example, Article 5(2)) and not to the Brussels Regulation. This is significant given the strict interpretation given by the Court of Justice to the lis pendens rule in relation to choice of court agreements.78

73 The EC acceded to the Hague Conference in April 2007: Council Decision 2006/719/EC on the accession of the Community to the Hague Conference on Private International Law, [2006] OJ L/297/1. See A Schulz, ‘The Accession of the European Community to the Hague Conference on Private International Law’ (2007) 56 ICLQ 939. 74 Convention of 30 June 2005 on Choice of Court Agreements, Art 29. A declaration of competence is required; under Art 30, a REIO may accede without its Member States, making a declaration that it has competence over all matters covered by the Convention and that its Member States, although not party to the Convention, will be bound by its provisions by virtue of the REIO’s participation (cf Art 216(2) TFEU). In such cases the term ‘Contracting State’ in the Convention will also apply to Member States of the REIO. The Convention is not yet in force; neither the EU nor any EU Member State is currently a Party. For a discussion of the need for a disconnection clause in the Convention, see Tell, above n 9. 75 Convention on jurisdiction and enforcement of judgments in civil and commercial matters of 27 September 1968, [1998] OJ C/27/1. 76 Regulation 44/2001/EC on jurisdiction and enforcement of judgments in civil and commercial matters, [2001] OJ L/12/1. 77 Ibid, Art 26(6). 78 In Case C-116/02 Erich Gasser GmbH v MISAT Srl [2003] ECR I-14693, the Court held that under the Brussels Regulation the court second seised, despite a choice of court agreement conferring exclusive jurisdiction on that court, must stay proceedings until the court first seised has determined jurisdiction; application of the 2005 Convention would give a different result, giving greater weight to the choice of court agreement.

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Disconnection Clauses in EU Law and Practice IV.

DISCONNECTION CLAUSES AND MIXED AGREEMENTS

As we have seen, although disconnection clauses are not only used within mixed agreements, they are facilitative of mixed agreements in areas of law which may have an impact on the Union legal order. In particular, the disconnection clause emphasises that within a mixed agreement—particularly a multilateral mixed agreement—the EU and its Member States should be treated as in some sense forming a group separate from other Contracting Parties, and that the legal links between themselves have an impact on their interrelation with other Parties. Beyond this, two questions arise: first, in case of a mixed agreement, does the disconnection clause add anything to the obligations on Member States derived from the Treaty by the Court’s case law on mixed agreements? Secondly, does the effect of a disconnection clause vary according to whether the agreement is mixed or not? First, does a disconnection clause add anything in terms of a Member State’s obligations? Member State Parties to mixed agreements are under Union law obligations: a) to comply with their ‘internal’ Union law obligations (Article 4(3) TEU)); b) to comply with their obligations under the mixed agreement79; and c) to submit disputes which fall within the scope of Union law (even if these relate to Convention-based obligations) to the Court of Justice rather than any Convention-based dispute settlement procedure.80 The disconnection clause does not appear to add to these obligations at the level of Union law. It does not help to resolve such issues as the extent of the duty of cooperation in the management of a mixed agreement, for example in constraining a Member State’s ability to use Convention procedures in the absence of prior consultation and agreement at Union level.81 However, what it does is to bring the position under Union law into line with the position in international law, ie under the mixed agreement itself, thereby preventing a possible conflict with obligations under that agreement. Thus, had a disconnection clause been included in the UNCLOS it would have been clearer from the start that Ireland’s complaint against the UK should be brought to the Commission and Court of Justice. Secondly, does it make any difference to the effects of a disconnection clause whether or not the agreement containing it is mixed, ie the Union is a party alongside the Member States? It is in fact increasingly likely that the Member States will conclude agreements which deal with matters where there is some EU

79

Commission v Ireland, above n 56, para 20, and Étang de Berre, above n 55, para 31. MOX Plant, above n 59. 81 See, eg, Case C–246/07 Commission v Sweden, pending, [2007] OJ C/183/19; cf Case C-45/07 Commission v Hellenic Republic, judgment 12 February 2009. 80

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Marise Cremona acquis but perhaps not enough to justify EU participation per se,82 or where Union participation is not possible. And it is where the Union is not a Party that the impact of the clause is more obvious in separating (disconnecting) the Member States’ obligations to the Union from those to other Contracting Parties. Where the Union is a Party, on the other hand, it is itself bound by and ‘connected’ to the Convention regime, the Convention becoming part of the Union legal order.83 Indeed, it has been argued that where the Union is a Party, a disconnection clause should not be legally necessary, in that the Union then takes on the obligation of implementing the Convention within the Union legal order.84 However, the distinction between mixed and non-mixed agreements affects the nature of Member States’ obligations as well as those of the Union. In the case of a Convention to which only some or all of the Member States are party, their obligations under the Convention are simply a matter of international law. In the case of a mixed agreement, however, Article 216(2) TFEU (ex Article 300(7) EC) applies, and the Member State is bound by the agreement as a matter of Union law as well as international law.85 The mixed agreement provisions apply not only to the Member States inter se, but also to relations between the Member States and the Union: the Member States’ obligation under the agreement is (also) owed to the Union.86 This difference between mixed agreements and agreements to which only (some or all of) the Member States are Parties is in effect minimised by the use of the disconnection clause. Let us suppose that there is a conflict between an obligation under a mixed agreement and a Union secondary law. As the agreement is binding under Article 216(2) TFEU, it is clear that such Union international obligations take priority over secondary law.87 The Member States may thus—within the framework of

82 As suggested by Hix, this may, eg, be the case where a Convention on a substantive subject within Member State or shared competence contains procedural provisions on jurisdiction or recognition and enforcement of judgments which fall within (exclusive) Community competence following Opinion 1/03 of the Court of Justice. J P Hix, ‘Mixed Agreements in the Field of Judicial Cooperation in Civil Matters: Treaty-making and Legal Effects’ in B Martenczuk and S van Thiel (eds) Justice, Liberty, Security: New Challenges for EU External Relations (Brussels, VUB Press, 2008) 211. 83 P-J Kuijper, ‘The Opinion on the Lugano Convention and the Implied External Relations Powers of the European Community’ in Martenczuk and van Thiel, above n 82. Smrkolj argues that indeed disconnection clauses are ‘paradoxical’ in the case of mixed agreements, querying the way that ‘the EC is at the same time approaching the treaty and excluding itself from application of all provisions that would be applicable for it’: Smrkolj, above n 9, at 10. 84 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). Hoffmeister gives the example of the UNESCO Convention on Cultural Diversity, where instead of a disconnection clause in the Convention itself the EU made a declaration on concluding the Convention: see Council Decision 2006/515/EC, [2006] OJ L/201/15; for text of the declaration, see above n 32. 85 Case 104/81 Hauptzollamt Mainz v CA Kupferberg & Cie KG aA [1982] ECR 3641, para 13. 86 Étang de Berre, above n 55, paras 25–26. 87 Case C-61/94 Commission v Germany [1996] ECR I-3989, para 52; Case C-344/04 R v Department of Transport, ex p International Air Transport Association, [2006] ECR I-403, para 35; Case C-308/06 Intertanko and Others [2008] ECR I- 4057, para 42.

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Disconnection Clauses in EU Law and Practice Union law—have to give priority to their obligations under the Convention over their obligations under secondary Union law. On the other hand, if the Union itself were not a Party, the Member States’ Union law obligation under Article 4(3) TEU (ex Article 10 EC) would be to give priority to Union law, at risk of being in breach of their (international law) Convention obligations.88 In the absence of a disconnection clause there is thus a potential difference for the Member States between mixed and non-mixed agreements in the priority accorded by Union law to their different obligations. Where the EU is also a Party (ie the agreement is mixed) they may find the agreement taking precedence over conflicting secondary law; where the agreement is not mixed then Union secondary law would take precedence.89 The disconnection clause, on the other hand, operates with respect to both primary and secondary Union law, and whether or not the EU is a Party: under the disconnection clause Union law will apply at least as regards Member States inter se and Member State/Union relations (as we have seen it does not affect obligations to third-country Parties). Our conclusion, then, is that because the disconnection clause operates at the level of international law, and functions to bring into line the Member States’ international and Union law obligations, it adds transparency with respect to third-country Parties (making explicit and in conformity with the agreement what is already a requirement under Union law), and in addition it allows a mixed agreement to be concluded containing obligations which are fully operative as regards third Parties without jeopardising the primacy of Union law for Member States should a conflict between the two arise. V.

DISCONNECTION CLAUSES AND EXCLUSIVITY

It has been argued above that disconnection clauses are facilitative of mixed agreements by removing the hierarchical conflict that otherwise might exist within Union law between obligations deriving from the agreement and obligations deriving from primary or secondary law. In the Lugano case,90 the Council and several Member States argued that this facilitative effect went so far as to render exclusivity unnecessary, at least in that case. What is the relation between 88 This obligation is subject to Art 351(1) TFEU (ex Art 307(1) EC) in the case of agreements concluded prior to the entry into force of the EC Treaty or of a Member State’s accession to the EU. Since disconnection clauses came into use in the late 1980s, it is primarily the newer Member States that might find themselves applying Art 351(1) to an agreement containing a disconnection clause. Art 351(1) protects the rights of third States under such an agreement, and the disconnection clause would not affect this. 89 This differentiation between mixed agreements and agreements to which the Community is not a Party does not arise in the case of a conflict between a provision in the agreement and primary Community law (including general principles of law and fundamental rights), since whether or not Art 216(2) TEFU (ex Art 300(7) EC) applies, primary Community law would prevail within the Community legal order: Joined Cases C-402/05P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council, [2008] ECR I-6351, para 308. 90 Opinion 1/03, above n 17.

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Marise Cremona disconnection clauses and exclusivity? Might a disconnection clause, by removing the possibility of an ‘effect’ on the Union legal order such as to trigger preemption and exclusivity, offer an ‘alternative answer’ to the justification for exclusive Union competence based on the AETR effect91? And are disconnection clauses only applicable to cases of shared competence, or might they also be appropriate in agreements concluded under exclusive competence by the EU alone? The disconnection clause is designed to avoid conflict and to preserve the primacy of Union law as regards the Member States; in this it goes further than a rule of priority (ie a rule that in case of conflict between Union law and the agreement, priority is given to the former92), being rather a choice of law rule (Union law will apply between the Member States whether or not there is a conflict). We know that a priority rule does not remove the AETR effect and render exclusivity unnecessary. In Open Skies, for example, the Court says: [I]n respect of the air transport to which Regulation No 2409/92 applies, the abovementioned Article 9 [of the Danish bilateral agreement on air services] requires that Regulation to be complied with. However praiseworthy that initiative by the Kingdom of Denmark, designed to preserve the application of Regulation No 2409/92, may have been, the fact remains that the failure of that Member State to fulfil its obligations lies in the fact that it was not authorised to enter into such a commitment on its own, even if the substance of that commitment does not conflict with Community law.93

Might a disconnection clause, on the other hand, be relevant to the need for exclusivity? It is not simply a priority rule but rather an allocation or choice of law rule. The UK and German submissions in the Lugano case stressed this difference.94 The Court, however, citing the same passage from Open Skies, refers to ‘any initiative seeking to avoid contradictions between Union law and the agreement envisaged’ and does not distinguish between a priority clause and a disconnection clause. In its Lugano Opinion, the Court of Justice takes the view that the disconnection clause cannot be seen as an alternative to determining whether the conditions for pre-emption are satisfied. The question whether competence is exclusive is a separate question:

91 Case 22–70 Commission v Council (European Agreement on Road Transport) [1971] ECR 263, in which the Court of Justice held at paras 17–8 that ‘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. 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.’ 92 See, eg, Art 134 of the Schengen Convention. 93 Case C-467/98 Commission v Denmark [2002] ECR I-9519, para 101. 94 Opinion 1/03, above n 17, para 81.

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Disconnection Clauses in EU Law and Practice any initiative seeking to avoid contradictions between Community law and the agreement envisaged does not remove the obligation to determine, prior to the conclusion of the agreement, whether it is capable of affecting the Community rules …95

A mechanism such as a disconnection clause, no more than a priority rule, is not in itself a decisive factor in resolving the question whether the Community has exclusive competence to conclude that agreement or whether competence belongs to the Member States …96

This must be right, in that these clauses are one mechanism used, in cases where the Member States are exercising their own treaty-making competence, to ensure the primacy of Union law in intra-Member State relations. They are not intended to address the issue of competence. Further, both a priority rule and a disconnection clause are essentially concerned with the primacy of Union law for the Member States; the disconnection clause is a choice of law rule (in the sense of allocating which law shall apply), but the Member States do not in fact have any choice in terms of Union law about whether or not EU law should apply in their inter se relations. However, the Court goes further and adds a warning: disconnection clauses, it says, not only do not guarantee that Union rules are not ‘affected’ but ‘on the contrary may provide an indication that those rules are affected’.97 This is, of course, the language of AETR; the Court seems to be saying that if it seems necessary to include a disconnection clause then that is a sign that the AETR conditions for exclusivity are met, that competence is after all not shared but exclusive, at least for that part of the agreement to which the clause would apply (‘in so far as there are Community or European Union rules governing the particular subject concerned and applicable to the specific case’98). If Member States feel that by including a disconnection clause in a draft Convention they are signalling that this is an area of possible exclusive competence (because Union rules are likely to be affected), the clause is much less likely to be acceptable, and a useful way of managing agreements of genuinely shared competence will be lost. This comment by the Court does not in fact follow its earlier logic that the determination of exclusivity via the AETR test is a separate question from the consideration of whether a disconnection clause is needed or appropriate. How convincing is this logic? Could it not be argued that since AETR exclusivity arises from legislative action (pre-emption), it should be amenable to a legislative solution (the disconnection clause)?99 Let us take another example. In Opinion

95

Ibid, para 129. Ibid, para 130. Ibid. 98 Taken from the disconnection clause in the Council of Europe Convention on the Prevention of Terrorism 2005, CETS No 196, Art 26(3). 99 Thanks to Robert Schütze for this comment. 96 97

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Marise Cremona 2/91 on the conclusion by the Community of ILO Convention 170 on safety in the use of chemicals at work, the Court held that a part of the Convention fell within exclusive competence as it was subject to internal Community rules which did not offer the flexibility of minimum standards: A number of directives adopted in the areas covered by Part III of Convention No 170 do, however, contain rules, which are more than minimum requirements. … 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 harmonisation … In those circumstances, it must be considered that the commitments arising from Part III of Convention No 170 … are of such a kind as to affect the Community rules laid down in those directives and that consequently Member States cannot undertake such commitments outside the framework of the Community institutions.100

Would a disconnection clause have removed the problem and thus the need for exclusivity in such a case? No—the problem in a case like this, the Court suggests, is not in fact the risk of conflict between rules (it admits there is no contradiction between the rules) but rather a potential conflict of legislative competence or legislator: the Member States have already transferred legislative authority in the field to the EU and this has been used; they cannot now delegate that same authority to another ‘legislator’ (the ILO machinery). As we have seen, a disconnection clause is an allocation rule designed to avoid conflicts between rules by determining that Union rules will always apply between the Member States; it is precisely designed to allow the Member States to adopt other rules (Convention rules) in their relations with third-country Parties. Were it to be applied in the circumstances envisaged here, it would result in the Member States adopting a differentiated system against a background where the EU had sought to establish a completely harmonised system for reasons of integration. The rationale for exclusivity found in AETR—that ‘common rules’ once in place would be affected by the exercise of a concurrent legislative competence—lies in the danger to the Union system should the Member States adopt autonomous rules, including rules that govern their relations with third countries. As expressed by the Court in its Lugano Opinion: The purpose of the exclusive competence of the Community is primarily to preserve the effectiveness of Community law and the proper functioning of the systems established by its rules.101

We may conclude, therefore, that while disconnection clauses are not in themselves evidence that competence may be exclusive, neither do they remove the 100 Opinion 2/91 Convention Nº 170 of the International Labour Organization [1993] ECR I-1061, paras 22–26. 101 Opinion 1/03, above n 17, para 131.

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Disconnection Clauses in EU Law and Practice need for exclusivity; indeed, they may be useful in agreements concluded by the Union alone under exclusive powers, since in these cases the Member States too may be implicated in the implementation of, and may indeed be referred to in, the agreement. VI.

CONCLUSION

What may we conclude? The disconnection clause is a choice of law or allocation clause. It embodies within the context of an international legal instrument the principle of the primacy of Community and Union law, and thus can be seen as a substantive counterpart to Article 344 TFEU (ex Article 292 EC). The disconnection clause is designed to allow the Member States to participate in parallel developments at international level where action is also undertaken at Union level. In some cases not all Member States may become Parties to the particular Convention. In some cases these developments will be supplementary to EU initiatives, in other cases it will be a matter of extending the acquis, or parts of it, to a wider group of countries. It has been widely used within Council of Europe Conventions, not so often used elsewhere. The disconnection clause facilitates mixed agreements in cases of shared competence by providing, at the level of international law, by the terms of the agreement itself, for the application of the obligations placed on Member States by Union law. It thus helps to avoid conflicts between the Member States’ international law and Union law obligations. The disconnection clause also removes the potential difference between mixed and non-mixed agreements with respect to the hierarchy between international norms and Union law, by resolving the issue in favour of Union law. The disconnection clause emphasises the unity of ‘the EU and Member States’, their participation as distinctive subjects of international law but which are nevertheless linked together through the Community/Union legal order(s). This common identity as Member States of the Union is important within mixed agreements, but is perhaps even more striking where the clause is used in non-mixed agreements. The disconnection clause does not provide a reason for denying AETR-based exclusivity, but neither does it indicate that an AETR-type ‘effect’ on common rules is present. The disconnection clause normally operates where there is shared competence and the exclusive/shared decision is logically prior to the decision to introduce a disconnection clause or to use other methodologies to manage a shared competence. In some cases a disconnection clause may be appropriate even in case of exclusive competence where the substance of the agreement requires specific action by the Member States. One of the main benefits of the disconnection clause is transparency, in making visible at the international level the obligations of the Member States as 185

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Marise Cremona members of the EU as well as Parties to an international agreement. However it is still liable to be categorised as a special derogation for the EU and as a refusal to enter fully into the obligations set out in the Convention. Although the validity of disconnection clauses is not contested, being agreed to by all Contracting Parties, there are concerns that they lead to uncertainty, especially as the scope of the Union acquis is likely to change over time.102 The declaration attached to Council of Europe Conventions goes some way towards clarifying the position, but the EU will need to continue to explain the effects of these clauses and the necessity for them deriving from the special nature of the Union legal order, much as it needs to try to increase transparency with respect to the legal effects of mixed agreements.

102

See Koskenniemi, above n 65, para 293; Smrkolj, above n 9.

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9 Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order INGE GOVAERE

I.

INTRODUCTION TO THE FOUNDATIONS OF THE AUTONOMY OF THE EU LEGAL ORDER

O

NE OF THE most intriguing features of the European integration process is how the new and autonomous EC legal order, (now, since the entry into force of the Lisbon Treaty, the EU legal order) has revived and reorientated the debate on the relation between interconnecting and interacting legal systems. For a long time, the discussion focused mainly on the sometimes difficult exercise of ensuring the smooth interaction between the self-proclaimed ‘supreme’ and ‘directly effective’ EU legal order1 with the ‘subordinate’ and ‘receptive’ domestic, including constitutional, legal orders of the Member States.2 Less attention was thereby paid to the fact that the new EU legal order was created, already according to the ECJ in Van Gend en Loos,3 not only distinctly from national law but also from public international law. With the increasing presence of the EU on the international scene and the gradual expansion of its

1 Until the entry into force of the Lisbon Treaty, it was still accurate to speak about the ‘EC’ instead of the ‘EU’ legal order to the extent that the ECJ has no jurisdiction with respect to the Common Foreign and Security Policy (CFSP) other than to delimit the interface with EC law under ex Article 47 TEU. On inter-pillar agreements, see chapter three by Ramses Wessel in this book. 2 See, for instance, J H H Weiler, ‘The autonomy of the Community legal order: through the looking glass’ in The Constitution of Europe (Cambridge, Cambridge University Press, 1999) 286–323. 3 Case 26/62 Van Gend en Loos [1963] ECR 1. This was most clearly recalled in the recent Kadi judgment of 3 September 2008, Joined Cases C-402/05 P and C-415/05 P, at para 282.

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Inge Govaere competence, it is now rapidly becoming apparent that equally important ‘external’ questions of interconnecting legal systems need to be addressed, in particular where there is a potential interlocking through international dispute settlement mechanisms. Safeguarding the autonomy of the EU legal order warrants jealously guarding the unique dispute settlement mechanism provided for in the EU Treaty. The crucial pillar on which the whole EU legal order is constructed is to be found in the combined reading of ex Articles 292 EC (new Article 344 TFEU)4 and 220 EC (new Article 19 TEU),5 which puts the ECJ in an exceptionally strong position as it confers exclusive jurisdiction to settle disputes relating to the EU Treaty between Member States. As such it is the EU Treaty itself that carries in it the seeds of the distinct EU legal order. From the very beginning it did away with the possibility for Member States to turn freely to other methods of dispute settlement available under public international law, such as arbitration, recourse to the International Court of Justice, retaliation, economic sanctions or ultimately warfare, to settle their disputes in relation to the interpretation and application of EU law (but the ECJ still has no true jurisdiction with respect to the CFSP as such). It is often assumed that the limitation on the free choice of dispute settlement for the Member States is to a large extent off-set by the ensuing guarantee of a uniform interpretation and application of the EU Treaty in pursuance of its stated objectives by the ECJ, based solely on respect for the rule of law and with all Member States treated equally regardless of size and economic or political weight.6 Obviously similar advantages are less immediately apparent in dealings with third countries. Insofar as the ‘internal’ implications of the autonomy of the EU legal order are concerned, namely, its relation to the domestic (constitutional) legal orders of the Member States, for a long time the focus of debate has been on three main issues. First, the ‘legislative Kompetenz-Kompetenz’ of the EU and its institutions as they are bound by the principle of attributed competence laid down in ex Article 5 EC and ex Article 7(1) EC respectively (new Articles 5 TEU and 13(2) TEU).7 Secondly, the ‘judicial Kompetenz-Kompetenz’ of the ECJ which, as an EU institution, is itself bound by Article 7(1) EC (new Article 13(2) TEU), whilst under the Nice Treaties having jurisdiction to interpret the scope of its own jurisdiction pursuant to ex Article 46 TEU as well as to determine the inter-pillar 4 ex Art 292 EC reads: ‘Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided therein’. 5 ex Art 220 EC stipulates: ‘The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed’. 6 R Dehousse, La Cour de Justice des Communautés européennes (Paris, Montchretien, 1994) 132–33; I Govaere, ‘The supranational courts and application of Community law: positive and negative aspects’ in D Ventura (ed), Direito Communautario do Mercosul (Brazil, Advogado Editoria, 1997) 139–61. 7 The Tobacco case illustrates that political willingness alone does not suffice to enact EC legislation lawfully, see Case C-376/98 Germany v EP and Council [2000] ECR I-8419.

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Beware of the Trojan Horse boundaries according to ex Article 47 TEU (amended in new Article 40 TEU).8 And, lastly, the most thorny issue of the link between legislative and judicial ‘Kompetenz-Kompetenz’, in particular the question of who may determine the boundaries of attributed competence—and thus whether or not the scope of the EU Treaty has been exceeded and/or EU action is to be deemed ultra vires—the ECJ, or constitutional courts of the Member States. It is no secret that the claim to exclusive jurisdiction in that respect by the ECJ in order to maintain the unity and uniformity of the EU legal order is not necessarily and readily shared by all.9 Not surprisingly, similar issues have also arisen in the external context. The question of EU competence to conclude agreements on its own or under a mixed formula (with Member States or cross-pillar) is essentially a question of ‘legislative Kompetenz-Kompetenz’.10 The complex issue of the jurisdiction of the ECJ to interpret and review the validity of such (mixed) agreements is, in essence, related to internal issues of ‘judicial Kompetenz-Kompetenz’.11 However, an aggravating factor in external relations appears to be that Member States find it more difficult to accept limitations by virtue of EU law which the third countries involved in those agreements do not face. The equilibrium between sovereign States is thus upset. Also in the external context, the most thorny issue is the link between judicial and legislative Kompetenz-Kompetenz, and in particular the question whether the ECJ, as an EU institution (ex Article 7 EC, new Article 13(1) TEU), could have more exclusive jurisdiction than the EU has external (exclusive) competence. The difficulty of finding an adequate answer was fully exposed by the reasoning of Advocate-General Tesauro in Hermès,12 and by the subsequent somersaults with respect to issues of interpretation and (direct) application of mixed agreements in the judgments of the ECJ in the Dior,13 Merck14 and MOX Plant cases.15 Those issues are still the subject of an ongoing and very important debate, especially from the perspective of the need to maintain a uniform system of EU law.16 Yet, whilst squarely in the realm of external relations, these matters again focus inwardly, on the interaction between the EU and the Member States. This essentially addresses the question of the ‘auto-interpretation’ of agreements, and whether this should be subject to the EU legal order or rather (partially) left to the domestic (constitutional) legal order of the different Member States.

8 This is perfectly illustrated by Case 91/05 Commission v Council (‘ECOWAS’ or ‘Small Arms and Light Weapons’) [2008] ECR I-3651. 9 It will be interesting to see the outcome of the German follow-up to the Mangold judgment rendered by the ECJ in 2005, see Case C-144/04 Mangold [2005] ECR I-9981. 10 For a typology of mixed agreements, see chapter two of this book by Marc Maresceau. 11 On this aspect, see chapter six of this book by Panos Koutrakos. 12 Case C-53/96 Hermès [1998] ECR I-3603. 13 Joined Cases C-300/98 & C-392/98 Parfums Christian Dior [2000] ECR I-11307. 14 Case C-431/05 Merck Genericos [2007] ECR I-7001. 15 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. 16 On these developments, see chapter six of this book by Panos Koutrakos.

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Inge Govaere II.

INTERCONNECTING WITH PUBLIC INTERNATIONAL LAW WHILST GUARDING AGAINST THE TROJAN HORSE

Auto-interpretation is not, however, tantamount to a right of auto-decision as to how agreements should be interpreted also by third States.17 Just as the EU and its Member States are not bound by the domestic law of third countries, the latter are not bound by the uniform interpretation given by the ECJ. An additional problem in the external relations is therefore to connect the EU legal order as smoothly as possible to the outside world, and to adopt an outward-looking focus aimed at reconciling both the autonomy of the EU legal order and principles of public international law. It should not be forgotten that most (mixed) agreements already provide for a dispute settlement mechanism,18 thus allowing for an authentic interpretation to be given which should be respected by virtue of the principle of pacta sunt servanda. It is hard to contest that if the EU wants to be a credible (and important) actor on the international scene then it should be able to play according to the international public law rules and obey international law principles too, if not especially so, in relation to dispute settlement. If the EU is to assume and enforce international rights and obligations effectively, it is imperative for it to be able to set up or adhere to international systems of dispute settlement which will be binding on both the EU and third countries alike. The ECJ has clearly understood this logic, and has shown an openness and willingness to use public international law, rather than the distinct EU legal order, as the legal frame of reference whenever third countries’ interests (ie ‘outward-looking’ aspects of EU external relations) have been involved. As such, the ECJ has unequivocally stated in the Racke case that the EU is indeed bound not just by (mixed) agreements which it has concluded but also by principles of customary international law, in particular the principle of pacta sunt servanda as codified in Article 26 of the Vienna Convention on the Law of Treaties.19 The ECJ had already acknowledged early on—in Opinion 1/76—that the EU may, in principle, set up a public international institution including a (mixed) system of dispute settlement by virtue of agreements.20 The strongest

17 For Leo Gross (as cited by Weiler, above n 2, at 300), ‘states have a right to auto-interpretation but not the right to decide on questions of international law, that is, to make binding decisions for others’. 18 For a detailed overview of the various international dispute settlement mechanisms applicable to the EU, see A Rosas, ‘International dispute settlement: EU practice and procedures’ (2003) 46 German Yearbook of International Law 284 at 292–308. 19 Case C-162/96 Racke [1998] ECR I-3655. The main question here was whether the EC could lawfully derogate from the principle of pacta sunt servanda on the basis of the principle of rebus sic stantibus as codified in Art 62 of the Vienna Convention. The ECJ refers to its earlier ruling in the International Fruit Company, case where it had already acknowledged that the EC is bound by international law, see Joined Cases 21–24/72 International Fruit Co [1972] ECR 1219. 20 Opinion 1/76 European laying-up fund for waterway vessels [1977] ECR 741, para 5.

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Beware of the Trojan Horse statement of principle is nonetheless to be found in Opinion 1/91, where the ECJ very clearly spelled out the necessary consequences flowing from the EC legal personality, conferred by Article 281 EC (amended by new Article 47 TEU), for dispute settlement. The ECJ succinctly stated: (a)n international agreement providing for such a system of courts is in principle compatible with Community law. The Community’s competence in the field of international relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards interpretation and application of its provisions …21

It did so after having forcefully countered arguments to the effect that the ECJ would always and at all costs jealously guard its own exclusive jurisdiction, through stressing that (w)here … an international agreement provides for its own system of courts, including a court with jurisdiction to settle disputes between the Contracting Parties to the agreement, and, as a result, to interpret its provisions, the decisions of that court will be binding on the Community institutions, including the Court of Justice …22

Whilst the rationale underlying the necessity of binding international dispute settlement thus appears to be easy to accept in principle,23 even for the ECJ, the practical modalities thereof pose certain problems which are not always easy to overcome. The ECJ appears to be very much on guard against some kind of ‘Trojan Horse’ effect, whereby the use of international dispute settlement under (mixed) agreements would erode the EU legal order and also affect the very foundations of its autonomy from within. This became flagrantly apparent in Opinion 1/91. Having accepted the establishment of a court system in principle, the ECJ proceeded with an analysis in concreto of the envisaged system of judicial supervision, and ultimately declared it to be incompatible with the EU Treaty. It held that (association) agreements may not set up ‘a system of courts which conflicts with [ex] Article 220 EC and, more generally, with the very foundations of the Community’.24 In other words, it seems that setting up or adhering to international dispute settlement systems is compatible with EU law—and will be

21

Opinion 1/91 EEA I [1991] ECR I-6079, para 40 (emphasis added). Ibid, para 39 (emphasis added). The ECJ further emphasises that: ‘Those decisions will also be binding in the event that the Court of Justice is called upon to rule, by way of preliminary ruling or in a direct action, on the interpretation of the international agreement, in so far as that agreement is an integral part of the Community legal order’. 23 Besides the WTO Understanding on Dispute Settlement, the arbitration procedure under UNLOS, Frank Hoffmeister points to the ‘many arbitral clauses in its agreements with third States’ to illustrate that the EC ‘has been quite open to accepting binding third party settlement’: 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 at 88. 24 Opinion 1/91 EEA I, above n 21, para 71. 22

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Inge Govaere binding on the EC and its institutions, including the ECJ—as long as the autonomy of the EU legal order is not affected. So does the ECJ now take back with one hand what it has given with the other? With the significant increase in the number, intensity and scope of agreements, and the ensuing increasing importance of international dispute settlement systems to which the EU (and its Member States) is party, it is not surprising that increasingly urgent clarification was subsequently needed. This was, albeit only partially, provided for by the ECJ in Opinion 1/9225 and Opinion 1/00,26 as well as the MOX Plant case.27 The answers and open issues appear to be very different, according to whether the case in hand concerns dispute settlement under (mixed) agreements with a third country, or between Member States and/or the EU (institutions).

III.

INTERNATIONAL DISPUTE SETTLEMENT MECHANISMS FOR SETTLING DISPUTES WITH THIRD COUNTRIES

In the light of the uncertainties remaining after two Opinions relating to the European Economic Area, the identification of the crucial concept of the autonomy of the EU legal order, which may not be affected by dispute settlement mechanisms set up under international agreements, lay at the core of the Court’s reasoning in Opinion 1/00 on the European Common Aviation Area.28 From this Opinion one may basically discern three underlying conditions indispensable to safeguarding the autonomy of the EU legal order, each of which appears to be of such a fundamental importance that a cumulative application seems to be called for. First, the ECJ stresses that it is ‘particularly important’ that the EU and its Member States should not be bound by a particular interpretation of rules of Community law referred to in that agreement.29 Secondly, the allocation of powers to the EU (and its Member States) should not be altered. And, lastly, the essential character of the powers of the EU institutions, as conceived in the EU Treaty, should remain unaltered.30 Although the last two conditions appear to be similar and are mentioned together by the ECJ, they are nonetheless aiming at very distinct situations.

25 26 27 28 29 30

Opinion 1/92 EEA II [1992] ECR I-2821. Opinon 1/00 ECAA [2002] ECR I-3493. MOX Plant, above n 15. Opinon 1/00 ECAA, above n 26. Ibid, paras 11 and 13. Ibid, para 12, which lists those last two conditions together.

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Beware of the Trojan Horse A.

Allocation of powers between the EU and its Member States

The second condition in particular—namely, that the allocation of powers between the EU and its Member States should not be altered—raises questions with respect to the practice of mixed agreements.31 An issue which is bound to arise in dispute settlement with third countries under mixed agreements is precisely who the competent and responsible Contracting Party is—the EC (or, since the Lisbon Treaty entered into force, the EU) and/or its Member States. But the answer to this simple question has become increasingly complex and difficult to formulate, and may even necessitate an interpretation by the ECJ on the allocation of powers. Should one then conclude that the mixed nature of agreements as such will always be problematic in terms of safeguarding the autonomy of the Union legal order? The answer is most likely negative, as long as the concept of Contracting Party is determined under the dispute settlement mechanisms purely for establishing rights and responsibilities under public international law without prejudicing a reallocation of powers from the perspective of EU law. The fact that this appraisal may be different under public international law and EU law is in fact quite common, and even inherent to the European integration process. It might suffice to point to the situation in the International Labour Organisation (ILO), which is by no means unique. Here, there is not even the possibility of mixed representation, as only States can be members and act by virtue of the statutes of the ILO. From the perspective of EU law, the ECJ held that it is, nonetheless, the EU that is exercising its external competence ‘through the medium of the Member States acting jointly in the Community’s interest’.32 Mixed agreements do, however, warrant special attention. Increasingly, third countries require ‘declarations of competence’; this is the case in particular, but not exclusively, where disconnection clauses are inserted in mixed agreements.33 In view of the dynamic nature of the EU external competence under the common commercial policy and the doctrine of implied powers, drafting a legally accurate

31 The ECJ seemingly accorded considerable importance to the fact that the Member States did not participate in the ECAA, to conclude that the envisaged agreement did not conflict with ex Art 292 TEC; see ibid, at paras 16–17. It is interesting to note that the second ECAA has now been concluded as a mixed agreement, without a prior advisory opinion of the ECJ as to its compatibility with EU law; see Decision of the Council and of the representatives of the Member States of the European Union meeting within the Council of 9 June 2006 on the signature and provisional application of the Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo on the establishment of a European Common Aviation Area (ECAA), [2006] OJ L/285/1. 32 Opinion 2/91 ILO [1993] ECR I-1061, at paras 4–5. 33 For the early agreements containing declarations on competence, see C Tomuschat, ‘Liability for mixed agreements’ in D O’Keeffe and H G Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 125 at 127–29.

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Inge Govaere declaration of competence seems to be an impossible exercise. Yet in so doing, the complexity of the European integration process in terms of allocation of powers is ‘exported’ to the international scene.34 Therefore, EU-specific problems unduly come to burden third countries35 and may increasingly become the object of international dispute settlement, potentially jeopardising the autonomy of the EU legal order. In practice, a system whereby the EU and its Member States are held jointly liable at international level whilst allowing for an internal (EU) allocation of responsibility,36 would therefore seem to be a much better and safer option from the perspective of third countries and the EU legal order alike.37

B. Essential character of powers of EU institutions Whereas the second condition set out by the Court in Opinion 1/00 deals with the allocation of competence between the EU and the Member States, the third condition focuses on the powers of the different EU institutions. There was no objection, from the perspective of EU law, to an extension of the powers of, for instance, the Commission or the ECJ to third countries, as long as their ‘essential character’ was not altered.38 With respect to international dispute settlement, it is of course especially the powers of the ECJ that require special attention. The ECJ has singled out two of its essential characteristics which need to remain unaltered by dispute settlement mechanisms under (mixed) agreements: a) it is a court whose ‘rulings are binding’39; and b) it has the exclusive task of reviewing the legality of acts of the EU institutions. 34

Further on this point, see chapter seventeen by Peter Olson in this volume. This is perfectly illustrated by the FAO case, in which the Commission and the Council disagreed with respect to who had the right to cast the vote—the Commission on behalf of the EC, or the Member States—in spite of the ‘precaution’ of the other FAO members of making EC membership conditional upon timely declarations of competence; Case C-25/94 Commission v Council (‘FAO’) [1996] ECR I-1469. 36 See also G Gaja, ‘The European Community’s rights and obligations under mixed agreements’ in O’Keeffe and Schermers, above n 33, 133 at 137, where he points out that this is automatically the case in the absence of a declaration on competence. 37 In favour of the principle of joint liability under international agreements for the whole of the mixed agreement, see I Macleod, I D Hendry and S Hyett, The External Relations of the European Communities (Oxford, Clarendon Press, 1998) 158–59, where they give alternative readings of the statement of A-G Jacobs in Case 316/91 European Parliament v Council (‘Lomé Convention’) [1994] ECR I-625, at para 69, holding that ‘[u]nder a mixed agreement the Community and the Member States are jointly liable unless the provisions of the agreement point to the opposite’. For an analysis of the differences in practice under several mixed agreements, see J Heliskoski, Mixed agreements as a technique for organizing the international relations of the European Community and its Member States (The Hague/London/New York, Kluwer Law International, 2001) 157–73; especially interesting is the proposal for a ‘procedural REIO clause’ to the OECD draft multilateral agreement on investment (MAI), mentioned in fn 55 on p 173. 38 Opinion 1/00 ECAA, above n 26, at paras 18–21. 39 Opinion 1/91 EEA I, above n 21, at paras 59–65; Opinion 1/00 ECAA, above n 26, at para 25 35

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Beware of the Trojan Horse The first characteristic, the binding nature of the Court’s rulings, becomes relevant only where all the parties agree to choose the ECJ as the proper forum to settle their disputes under the international agreement. Obviously this would be limited to those highly exceptional cases in which third States agree to (at least partly) surrender their sovereignty in favour of the EU. The closest to such a system, at least in theory, was probably the reading given by the ECJ in Opinion 1/92 of the ‘procès-verbal agréé ad article 105’, inserted into the EEA Agreement after the first negative opinion of the ECJ and providing that the ultimate dispute settlement referral by the Joint Committee would lead to a final and binding decision by the ECJ, thus also insofar as the third countries were concerned.40 Similarly, the EEA saga teaches that allowing for preliminary rulings to the ECJ by third country courts is not incompatible with EU law, provided that these rulings will be binding on the referring courts. Although this option is now written into the EEA Agreement, it is of course difficult to accept a practical application thereof from the perspective of the sovereign third States.41 The second essential characteristic of the ECJ—that is, the exclusive task of reviewing the legality of acts of EU institutions—may at first sight pose a bigger problem, as the ECJ has specified that it applies regardless of whether those acts are taken under the EU Treaty or under any other international instrument.42 If this were to mean that acts of the EU institutions could not be challenged for breach of international agreements under international dispute settlement mechanisms without affecting the autonomy of the EU legal order, it would not make much sense to allow the EU to set up such mechanisms in the first place. The whole essence of having legal personality and setting up international dispute settlement mechanisms is not only to enable the enforcement of the rights of the EU and its Member States against third countries, but also vice versa. It should not be forgotten, however, that dispute settlement may bring clarifications of interpretation of an international agreement, as well as establishing that a Contracting Party has breached its international obligations under the agreement. Such a statement is essentially declaratory in nature and does not of itself lead to invalidating the contested EU measure. The latter may only be done by the ECJ in proceedings brought before it to that effect. In this respect it is important to recall that the fact that the EU and the ECJ are bound by the rulings of the international dispute settlement mechanisms does not necessarily and automatically mean that this will also affect the validity of EU measures.43 It might suffice to point to the ECJ ruling in the Van Parys case,44

40 Opinion 1/92 EEA II, above n 25, at paras 23–25. At para 24, the ECJ states unequivocally that this ‘constitutes an essential safeguard which is indispensable for the autonomy of the Community legal order’. 41 For an overview of the rare cases whereby the ECJ is given jurisdiction with respect to third countries, see Rosas, above n 18, at 290. 42 Opinion 1/00 ECAA, above n 26, at para 25. 43 Similarly with respect to the international agreement itself, see the International Fruit Company case, cited above n 19.

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Inge Govaere whereby direct effect was denied to the Decision of the WTO DSB which was prejudicial to the EU bananas regime, as the latter clearly did not intend to comply with the WTO nor did it expressly refer to it (ie the two possibilities for direct effect of WTO. The WTO is of course a special case, but it serves the purpose of illustrating the discretion left to the EU legal system in the face of international dispute settlement. Nevertheless, this may well not be the case at all times and in all fields. In the future, such flexibility in approach might well be less apparent if the EU were to accede to the European Convention on Human Rights (ECHR), as provided for in the Lisbon Reform Treaty. Considering that respect for fundamental rights and freedoms is a constitutional principle which conditions the legality of EU measures, whereas the Treaty expressly refers, inter alia, to the ECHR as a point of reference in that respect, it would most likely be virtually impossible for the ECJ not to give (direct) effect almost automatically to a ruling made specifically by the European Court of Human Rights (ECtHR).45

C. Binding interpretation of rules of Union law referred to in the agreement Any statement to the effect that it is virtually impossible to have dispute settlement (other than the ECJ) set up by mixed agreements should thus clearly and firmly be rejected. In practice, some form or other of dispute settlement is provided for by most international (mixed) agreements concluded by the EU without raising insurmountable questions of potential conflict with the autonomy of the EU legal system. The key element lies in respect for the first proviso stipulated by the ECJ in the ECAA Opinion, namely, that ‘the EC and its Member States should not be bound by a particular interpretation of rules of Community law referred to in that agreement’. What the ECJ seems to indicate is that the autonomy of the EU legal order warrants that ‘internal EU laws’, ie those applicable in intra-Community relations, should not be affected by decisions of dispute settlement bodies set up by (mixed) agreements. Fulfilment of this condition is usually not at all problematic. The provisions of most (mixed) agreements are not worded identically to those of EU law. And where they do 44 Case C-377/02 Van Parys [2005] ECR I-1465, at para 52. On this case and for a recent overview of the effect of international agreements, including the WTO, in EU law, see C Kaddous, ‘Effects of International Agreements in the EU Legal Order’ in M Cremona and B de Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 291–312. On the importance of WTO dispute settlement, which he labels as ‘by far the most important international dispute settlement mechanisms to which the EU has submitted itself ’, see also Rosas, above n 18, at 292–99. 45 Already now, there is often an indirect effect as the ECJ does not hesitate to refer to rulings of, amongst others, the ECtHR of its own accord. On this issue in general, see A Rosas, ‘With a little help from my friends: international case-law as a source of reference for the EC courts’ (2006) 5 The Global Community YILJ 2005 203–30; specifically on the relation to the ECHR, see A Rosas, ‘The European Court of Justice and fundamental rights: yet another case of judicial activism ?’ in C Baudenbacher and H Bull (eds), European Integration through Interaction of Legal Regimes (IUSEF No 50, University of Oslo, Universitetsforlaget, 2007) 33–63.

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Beware of the Trojan Horse contain identical wording (even if identical to the EU Treaty), the ECJ has consistently held that this does not necessarily mean that an identical interpretation needs to be given too; rather, regard needs to be had to the objective, purpose and context of the agreement concerned.46 Thus usually there will be an opportunity to dissociate the interpretation and obligations under the (mixed) agreement from those under EU law.47 A specific problem does arise, however, when the objective of homogeneity is written into a (mixed) agreement, with the express aim of extending EU law for uniform application and interpretation to third States. In this particular case the underlying idea is specifically that it should no longer be possible to dissociate the international agreement from identical provisions of EU law.48 Conversely, any interpretation of provisions in the (mixed) agreement worded identically to EU law then necessarily also has an impact on the latter. Such an exercise is, of course, difficult to reconcile with the ruling of the ECJ that in order to safeguard the autonomy of the EU legal order, ‘the EC may not be bound by interpretations of rules of EC law referred to in an agreement in the exercise of their internal powers’.49 In such an exceptional case, it will therefore simply be impossible to establish a dispute settlement mechanism under the agreement, the decisions of which would be binding on the ECJ. A mixed composition, including judges from the ECJ as well as from the third States concerned, not only is to no avail but is also considered to be an aggravating factor, not least because it would require ECJ judges to turn to public international law, rather than specifically EU law, methods of interpretation.50 From the perspective of the need to safeguard the autonomy of the EU legal order, the only acceptable solution thus would appear to be for the ECJ, in the last resort, to give binding decisions on the interpretation of identically worded provisions of such an agreement too, for application in third countries.51 But such an outcome is, of course, extremely difficult to accept from the perspective of maintaining the sovereignty of the third States concerned. However interesting in theory, in practice might this whole discussion not be reduced to ‘much ado about nothing’? The only agreement concluded so far which truly tries to establish full homogeneity is the EEA Agreement, so that it is not really surprising that it was in relation to this agreement that the issue of the autonomy of the EU legal order was for the first time really addressed in the 46

Case 270/80 Polydor v Harlequin [1982] ECR 329; Opinion 1/91 EEA I, above n 21, at para 14. For instance, the ECJ did not object to the settlement of disputes relating to the adoption of safeguard clauses under the EEA by way of arbitration; Opinion 1/92 EEA II, above n 25, at para 36. 48 Yet paradoxically, already, in the first case in which the EEA agreement was invoked to contest the validity of secondary EC law, the Council has (unsuccessfully) argued against an identical interpretation of EEA and EC provisions; see Case T-115/94 Opel Austria [1997] ECR II-39, at para 62. 49 Opinion 1/00 ECAA, above n 26, at para 27. 50 Opinion 1/91 EEA I, above n 21. 51 See also the already mentioned importance attached by the ECJ to the ‘procès verbal agréé ad article 105’ in Opinion 1/92 EEA II, text above n 40. 47

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Inge Govaere context of the external relations of the EU. In the end the—imperfect— compromise was found in the setting up of a parallel EFTA court, with a kind of crucial ‘in-between courts’ position attributed to the EEA Joint Committee.52 The subsequent ECAA Agreement avoided the pitfalls of the EEA Agreement by aiming for an ‘as similar as possible’ interpretation, with some mention of homogeneity but without guaranteeing that this would also and necessarily always be achieved in practice. The importance of the latter was stressed by the ECJ, through pointing out that the unanimity requirement in the ECAA Joint Committee may prove to be prejudicial to the proper functioning of the ECAA Agreement in that it may not allow complete homogeneous interpretation of its rules. It must, however, be regarded as a further guarantee that the Community will not, in its relations with Member States of Community nationals, be bound by an interpretation which is at variance with Community case-law …53

As to the argument that the unanimity requirement may prevent the adoption altogether of decisions by the Joint Committee which, pursuant to Article 23(1) ECAA, ‘shall be in conformity with the case law of the Court’, the ECJ points out that this will only affect the proper functioning of the ECAA Agreement, whilst not having ‘any impact on the Community legal order, whose rules, which are identical as to substance but distinct as to form, will continue to be interpreted autonomously’.54 There is, however, a theoretical dilemma ensuing from the reasoning of the ECJ. In essence the ECJ accepts that a binding interpretation is given under international dispute settlement of agreements concluded by the EU, as long as it does not affect the autonomous interpretation to be given exclusively by the ECJ to ‘internal’ or ‘domestic’ EU law. This may not easily be squared with the prior ECJ rejection of a dualist approach to agreements in the Haegeman case, where it forcefully stated that provisions of international agreements entered into by the EU ‘form an integral part of EC law from the entry into force of that agreement’.55 Should not the logical consequence then be that such agreements always and necessarily also fall within the exclusive jurisdiction of the ECJ? With respect to the question of the autonomy of the EU legal order, it seems that the ECJ (necessarily) accepts that the latter statement can only apply to an inwardlooking, intra-Union context; from an outward-looking external relations perspective dealing with third countries, a more pragmatic approach is called for. In the latter case, the EU is bound not only by EU law but also by public international law, in particular the above-mentioned principle of pacta sunt servanda. One of the difficult but crucial tasks for the ECJ is therefore to 52 See Opinion 1/92 EEA II, above n 25; A Toledano Laredo, ‘The EEA agreement: an overall view’ (1992) 29 CMLRev 1199. 53 Opinion 1/00 ECAA, above n 26, at para 40. 54 Ibid, at para 41. 55 Case 181/73 Haegeman [1974] ECR 449, at paras 3–5.

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Beware of the Trojan Horse distinguish between such inward- and outward-looking situations, so as to ensure that the concessions made to accommodate public international law will be strictly limited to dispute settlements under which the rights and obligations of third countries are involved, and will not produce a spill-over or ’Trojan Horse’ effect jeopardising the autonomy of the EU legal order. IV.

DISPUTE SETTLEMENT UNDER (MIXED) AGREEMENTS BETWEEN MEMBER STATES AND/OR EU INSTITUTIONS

In recent years, the ECJ has endeavoured to shield the autonomous EU legal order from unwarranted external interferences, and to contain the concessions made to public international law to the sole situation where international rights and obligations vis-à-vis third countries have been involved. It was in particular in the so-called MOX Plant case of 2006 that the ECJ forcefully set out the boundaries between EU and international dispute settlement,56 to the effect that in intra-Community relations, whether relating to disputes between EU institutions, between the latter and Member States or even solely between Member States, the combined reading of ex Articles 220 and 292 EC (new Articles 19(1) TEU and 344 TFEU respectively) always and necessarily confers exclusive jurisdiction to the ECJ. The ECJ unequivocally clarified that any argument that the dispute relates to a mixed agreement, containing a dispute settlement mechanism which is specific and specialised, or even more advantageous than that provided by the EU Treaty, will be to no avail. In conclusion it agreed with the Commission that Ireland had breached its obligations under ex Articles 10 and 292 EC (new Articles 4(3) TEU and 344 TFEU respectively) by initiating dispute-settlement proceedings against the UK under the UN Convention on the Law of the Sea, with respect to the location of the MOX plant at Sellafield on the coast by the Irish Sea. Different hurdles had to be overcome to reach what may appear to be an extreme position, whereby a prima facie distinction seems to be made under EU law according to who assumes the international obligation—the Member States and/or the EU. Nevertheless, questions also arise as to the coincidence with public international law.

A.

Potential importance of mixity for Member States

The argument regarding the mixed nature of the agreement is, of course, a weighty one which cannot easily be discarded. The Member States have contracted rights and obligations in their own names alongside the EU, and have ratified the agreement, including the provisions on dispute settlement, according 56

MOX Plant, above n 15.

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Inge Govaere to their own constitutional rules. What, then, is the effect of the legislative kompetenz-kompetenz on judicial kompetenz-kompetenz and dispute settlement? This complex and sensitive question has been met with a qualified approach. In the line of earlier cases such as Dior57 and Merck,58 the ECJ was careful not to exclude the possibility that certain provisions of a mixed agreement might indeed fall outside the scope of EU law and thus also outside its jurisdiction. At the same time it forcefully emphasised that it is solely up to the ECJ itself to identify any such limits.59 A logical consequence would then be to accept that in relation to those provisions falling outside the scope of EU law, and only for as long as they do not gradually become part of the EU legal order, Member States could freely turn to the specific dispute settlement procedure provided for under the agreement. But the ECJ did not need to spell out this implication in casu, as it ruled that the subject matter of the dispute fell within the scope of EU competence, ‘which the Community has elected to exercise by becoming a party to the Convention’.60 It is not totally clear what importance, if any, should be attached to the latter statement in terms of choice of dispute settlement procedures, and in particular whether it constitutes an indispensable condition to trigger the obligation to rely solely on the ECJ for dispute settlement. Surely, the only important issue should be whether or not the subject matter comes within the scope of EU law, irrespective of whether this is exercised by the EU itself or not.61 But clearly the ECJ did not want—or need—to go that far in its reasoning in this particular case.

B.

(Mixed) agreements concluded by the EU: the Haegeman track

Having established that the subject matter of the dispute falls within the scope of EU law, the ECJ, in a straightforward three-step analysis, claimed exclusive jurisdiction so as to safeguard the autonomy of the EU legal order.62 The starting point is the implicit reference to the above-mentioned Haegeman ruling,63 whereby the ECJ recalls that provisions of a (mixed) agreement form an integral part of the legal EU order. As a consequence, disputes between Member States relating to such provisions are considered to be disputes relating to the interpretation and application of the EU Treaty in the sense of Article 344 TFEU (ex Article 292 EC). They should therefore be dealt with exclusively on the basis of the procedure provided for in Article 259 TFEU and may not be addressed under

57 58 59 60 61 62 63

Above n 13. Above n 14. MOX Plant, above n 15, at para 135. Ibid, at paras 120 and 126. See also chapter six by Panos Koutrakos in this book. See section IV.C. below, on the ‘Open Skies’ approach. MOX Plant, above n 15, at paras 123–28. Haegeman, above n 55.

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Beware of the Trojan Horse the dispute settlement procedure provided for in the agreement.64 It would be logical to come to the same conclusion (albeit pointing to the relevant procedures laid down in the EU Treaty), regardless of whether the dispute involves the Member States and/or the EU (institutions). Besides this clear statement of principle, the MOX Plant case also offers a couple of additional clarifications in relation to an interesting line of reasoning advanced by Ireland.65 First, do the provisions on dispute settlement not form an integral part of EU law in the sense of the Haegeman ruling? If so, should they not be respected? To counter this argument, the ECJ simply invoked the hierarchy of norms to recall that an international agreement can anyhow not affect ex Article 292 EC (new Article 344 TFEU).66 From this hierarchy of norms also flows the refusal to consider arguments about the purported advantages of the system of dispute settlement under the agreement, even if the latter were to be clearly demonstrated.67 Secondly, would the outcome be different if the dispute partly exceeded EU competence and related to Member States or cross-pillar issues such as terrorism? Here the ECJ simply reiterated the reasoning in other alleged cross-pillar cases, such as Werner 68 and Leifer 69 and the Schengen SIS case,70 that it is solely up to the ECJ to interpret the limits of its own jurisdiction. Once again it thereby implied that it might suffice that a ‘significant’ part of the dispute related to the interpretation and application of EU law for it to claim exclusive jurisdiction over the whole dispute.71 An aggravating factor in the MOX Plant case was that Ireland had invoked EC directives before the Arbitral Tribunal. In the light of its approach to binding interpretations of ‘internal’ EU law in dispute settlement with third countries,72 it is no surprise that the ECJ considered it to be a ‘manifest risk’ for the autonomy

64 MOX Plant, above n 15, at para 129; the ECJ added that the proceedings brought by Ireland before the Arbitral Tribunal were definitely a breach of ex Art 292 EC (new Art 344 TFEU) as its decisions are final and binding on the parties to the dispute. 65 Other than, for instance, the fact that the necessary interim measure relating to the subject matter under dispute may be taken by the ECJ pursuant to ex Art 243 TEC (new Art 279 TFEU); see ibid, at para 138. 66 Ibid, at paras 130–32. Additionally it points to Art 282 of the Convention which accommodates compliance with EU obligations. 67 Ibid, at paras 136–37. 68 Case C-70/94 Werner [1995] ECR I-3189. 69 Case C-83/94 Leifer [1995] ECR I-3231. 70 Case C-503/03 Commission v Spain (‘Schengen SIS’) [2006] ECR I-1097. 71 MOX Plant, above n 15, at paras 134–35. On the different approach adopted by the ECJ according to whether it concerns attribution of the proper legal basis solely under the Community pillar or across pillars, see I Govaere, ‘External competence: What’s in a Name? The difficult conciliation between dynamism of the ECJ and dynamics of European integration’ in P Demaret, I Govaere and D Hanf (eds), European Legal Dynamics—Dynamiques juridiques européennes (New York, PIE Peter Lang, 2007) 467 at 476–80. 72 See above in section III.C.

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Inge Govaere of the EU legal order where the dispute involved the interpretation and application of EU law in proceedings brought against another Member State without involving rights and obligations of third countries.73 From the above, it is immediately apparent that the importance of the MOX Plant ruling can hardly be over-estimated and largely exceeds the sole dispute on the Sellafield plant. The fundamental principles spelled out here by the ECJ necessarily apply to dispute settlement between the Member States and/or the EC (institutions) relating to all mixed agreements—and this in all fields, including the WTO.

C. Implications for agreements concluded solely by Member States: the Open Skies track? The main lesson to be drawn from the MOX Plant case is that the mere fact that a Member State brings a case against another Member State under international public law dispute settlement and relating to provisions of an international agreement within EU competence, is of itself a breach of an EU Treaty obligation. The open question remains whether or not such agreement should necessarily also be (co-)concluded by the EU itself. Looking at the MOX Plant case the answer would, at first sight, appear to be affirmative, as it starts by invoking the Haegeman logic and the effect of international agreements concluded by the EU on the EU legal order. But was this reasoning not simply facilitated by the underlying facts of the case at hand? To take an extreme hypothesis, what would be the situation if the EU simply could not act under public international law, even in areas of its exclusive competence?74 Once again, it might suffice to take the example of the ILO,75 where the EU necessarily acts through the medium of the Member States. Would Member States then be able to use international dispute settlement against one another, simply because the EU has not itself been able to assume the international rights and obligations? Such a conclusion, which relies on the EU’s capacity to act on the international level as the decisive criterion, would appear to be at variance with the fundamental nature of the necessity to safeguard the autonomy of the EU legal order. If accepted, it might also well amount to a powerful incentive for Member States to refrain from advocating (co-)membership of the EU in international organisations within its areas of competence.76 73

MOX Plant, above n 15, at para 154. See also Rosas, above n 18, at 312, where he illustrates another potential problem for the EU and its Member States by reference to ‘the Hushkits dispute initiated in 2000 by the United States against 15 Member States under the dispute settlement provisions of the ICAO’ subsequent to the adoption of an EC directive. 75 See above in section III.A. 76 On this issue, see I Govaere, J Capiau and A Vermeersch, ‘In-between seats: the participation of the European Union in international organisations’ (2004) 9 EFARev 155. 74

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Beware of the Trojan Horse In such cases where the Haegeman track clearly falls short, nothing would seem to prevent the ECJ from relying on the Open Skies cases as the basis for an alternative approach. In the latter cases, the Commission had already successfully challenged international agreements concluded solely by Member States with third countries for incompatibility with EU Treaty obligations.77 It is clear from the MOX Plant case that it is a primary obligation to respect and protect the autonomy of the EU legal order. Furthermore, the ECJ stressed the importance of the hierarchy of norms. If agreements concluded by the EU or in a mixed form cannot derogate from ex Article 292 EC (new Article 344 TFEU) under any condition, the principle of primacy of EU law over national law would render it extremely difficult to argue otherwise in relation to agreements concluded solely by the Member States—with the important proviso, of course, that the subject matter of the dispute under the international agreement comes at all within the ambit of EU law. Conversely, disputes between Member States that remain outside the scope of EU law could then, of course, still be settled under international dispute settlement procedures, in particular those set up to that effect by the agreement. Such an ‘Open Skies track’ reasoning would seem to impose itself especially in relation to matters falling within the exclusive competence of the EU but which the EU may not itself exercise in international fora due to external constraints. It will most likely be much more difficult for Member States also to accept this in areas of shared competence, in particular where this competence is not (yet fully) exercised by the EU. But this line of discussion essentially rejoins the debate on the internal allocation of competence and the extent of the exclusive jurisdiction of the ECJ, which may also takes place in the framework of mixed agreements.78

D. Coincidence with public international law: plea for a judicial disconnection clause A complicating factor is that the action undertaken by one Member State against another may well be valid from the perspective of public international law and potentially lead to a different outcome from that under EU law. As Contracting Parties to the agreement, (Member) States—or the EU in the case of mixed agreements—could in principle turn to public international means of dispute settlement even among themselves. The mere existence of ex Article 292 EC (new Article 344 TFEU) is not in itself sufficient to change that appraisal under public international law. Even a combined reading of Articles 27 and 46 of the Vienna 77 Case C-467/98 Commission v Denmark [2002] ECR I-9519; Case C-468/98 Commission v Sweden [2002] ECR I-9575; 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 Luxemburg [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. 78 See further chapter six in this book by Panos Koutrakos.

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Inge Govaere Convention on the Law of Treaties, exceptionally allowing for the provisions of internal law to be invoked as a justification for a failure to perform a Treaty obligation if it concerns a manifest breach of a rule of fundamental importance, would most likely be to no avail.79 Hence the overriding importance of trying to prevent a potential conflict of norms on dispute settlement from the outset. A crucial point is that under public international law, Member States and the EU (institutions) in principle ‘may’, but often are not obliged to, use international dispute settlement under the agreement. The conferral of express exclusive jurisdiction on the ECJ by virtue of the EU Treaty indeed appears to be quite unique, a point illustrated by a comparison with the non-exclusive jurisdiction of the International Court of Justice. Unfortunately this does not mean that issues relating to the proper litigation forum may always and easily be excluded out of hand, in particular where the agreement sets up its own specific and specialised system of dispute settlement.80 The question is how this may be squared with EU law. In the light of the ruling in MOX Plant, it would appear to be extremely difficult for the ECJ to accept unconditionally the setting up of an obligatory rather than an optional system of international dispute settlement under an agreement, for this would fundamentally undermine its exclusive jurisdiction, fatally affect the autonomy of the EU legal order, and thus constitute a flagrant breach of EU law. But such a conclusion should immediately be qualified in view of the above finding that the autonomy of the EU legal order is not always and automatically held to be affected by international dispute settlement involving third countries, even if this is binding on the ECJ.81 On the contrary, such will be the case for disputes between the Member States and/or the EU (institutions), so that the condition for accepting an exclusive system of dispute settlement under an agreement is most likely to be found in a legally binding guarantee that the latter disputes will continue to be dealt with exclusively by the ECJ. In practice, an easy way out, if accepted by the third countries concerned, would be to insert systematically and preventatively a kind of ‘judicial disconnection clause’ in all (mixed) agreements.82 This could, for instance, stipulate that ‘the agreement shall not prejudice the application of the primary EU provisions on dispute settlement between the Member States and/or the EU (institutions) relating to a subject matter covered by EU law’. Contrary to the earlier-mentioned current practice of inserting a ‘declaration on competence’ which exports EU problems to the international level,83 a judicial disconnection clause would allow

79 See, eg, A De Walsche, ‘Le contrôle jurisdictionnel des accords internationaux’ in Commentaire Megret, 12, Relations Extérieures (Bruxelles, Editions de l’Université de Bruxelles, 2005) 141 at 163–64. 80 See eg Art 1 of Annex 2, ‘Understanding on rules and procedures governing the settlement of disputes’, The result of the Uruguay Round of multilateral negotiations: the legal texts’, WTO, 1995, which in essence states that the rules and procedures of this Understanding shall apply to settle the disputes under WTO agreements. 81 See above in section III. 82 On disconnection clauses in general, see chapter eight in this book by Marise Cremona. 83 See above in section III.A.

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Beware of the Trojan Horse for a problem specific to the EU and its Member States to be ‘sent back’ to the EU level, simultaneously avoiding external fora to be called upon to interpret internal EU law.84 Some agreements currently already have a similar clause, thus facilitating—but not guaranteeing as the MOX Plant case illustrates clearly—the respect for both EU Treaty obligations and international agreements by Member States. To avoid future problems, it is suggested that judicial disconnection clauses be included systematically in all agreements, as is the case already for conditionality clauses, as well as strengthening the wording from optional to obligatory. The latter will of course not change the nature of the obligation under EU law, but it would then also render the referral to the ECJ obligatory by virtue of public international law, thus pre-empting potentially difficult discussions on a possible recourse to Articles 27 and 46 of the Vienna Convention on the Law of Treaties in order to avoid a clash between EU and public international law.

V.

DUTY OF CLOSE COOPERATION AND DISPUTE SETTLEMENT: MEMBER STATES AND THIRD COUNTRIES

An important question which is still relatively unexplored is to what extent, if any, EU law may also potentially limit the freedom of Member States to initiate international dispute settlement procedures against third countries. So far this issue has not really been addressed by the ECJ. The MOX Plant case nonetheless offers some food for thought by stressing the overriding importance of the duty of close cooperation enshrined in ex Article 10 EC (new Article 4(3) TEU), in particular in the context of mixed agreements. In MOX Plant the ECJ not only pointed out that ex Article 292 EC (new Article 344 TFU) is a specific expression of the more general duty of loyalty laid down in ex Article 10 EC (new Article 4(3) TEU) (so that ex Article 292 EC, new Article 344 TFEU in itself is sufficient to prevent a Member State from bringing international dispute settlement procedures against another Member State)85 but went significantly further, as it maintained that the duty of close cooperation, pursuant to ex Article 10

84 Another approach might consist of a system of binding preliminary rulings of the ECJ, specifically to deal with intra-EU issues, to be inserted in the dispute settlement provisions of any agreement; but the drawback is that the actual application in the case at hand would escape the control of the ECJ. In favour of such an approach, see S Adam, ‘Het Europees Hof van Justitie en andere internationale rechtsprekende organen. Enkele opmerkingen naar aanleiding van het MOXFabriek arrest’ (2007) Revue Belge de Droit International 113. This article makes an interesting EU-law analysis of the ‘ijzeren Rijn’ dispute between Belgium and The Netherlands which was settled by the Permanent Court of Arbitration on 25 May 2005, (2005) Ars Aequi 1058. 85 MOX Plant, above n 15, at para 169.

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Inge Govaere TEC, implies that the Member States are under a duty to provide prior information and to consult with competent EU institutions before instituting dispute settlement procedures.86 One could easily see why such a duty of cooperation and a similar obligation of prior information should also rest on the Member States when the latter trigger dispute settlement procedures against third countries under (mixed) agreements with respect to areas covered by EU law. It should be remembered that already, in the Kupferberg case, the ECJ had pointed to ex Article 300(7) EC (new Article 216(2) TFEU) to clarify that Member States fulfil an obligation not only in relation to the third country concerned but also, and above all, vis-à-vis the EU.87 The rights and obligations of Member States vis-à-vis third-country Parties to a (mixed) agreement should therefore be read through the prism of the prevailing EU interest. At least in theory, one could imagine a potential conflict of interests were Member States freely able to trigger international dispute settlement against third countries. One such hypothetical scenario might consist of EU efforts to come to a negotiated solution to an international dispute with a third country being thwarted by dispute settlement procedures initiated by a Member State. Another would have a Member State bringing international dispute settlement procedures against a third country with the sole purpose or unwarranted effect of illustrating that a similar position adopted by another Member State, or even the EU itself, is contrary to public international law obligations. The answer might be found in the combined reading of ex Articles 300(7) and 10 EC (new Articles 216(2) TFEU and 4(3) TEU respectively), in order to impose an obligation of prior information and consultation on the Member States also in respect of dispute settlement targeting third countries, although the MOX Plant and FAO cases support the conclusion that the duty of close cooperation could equally well be based on ex Article 10 EC (new Article 4(3) TEU) alone.88

86 Ibid, esp paras 179 and 182. See also the procedure under Art 259 TFEU, whereby the Commission needs to be involved in dispute settlement between Member States. A-G Maduro had further raised the threshold by speaking in terms of a duty of ‘sincere’ cooperation (at para 57), but the use of such an adjective would most likely have raised difficult questions of legal interpretation. 87 Case 104/81 Kupferberg [1982] ECR 3641, at para 13. 88 MOX Plant, above n 15, and FAO, above n 35, esp at paras 48–50. On the importance attached by the ECJ to this duty of close cooperation, see also Opinion 2/91 ILO, above n 32, at paras 36–38; Opinon 1/94 WTO [1994] ECR I-5267, at paras 108–9. More than 10 years after that date, the concluding remarks of Jean-Louis Dewost in 1997 still seems to be pertinent: ‘… le vrai problème consiste à mettre en oeuvre loyalement le ′devoir de coopération′ que la Cour a rappelé aux Etats membres et aux institutions dans son Avis 1/94. … cette coopération est régie par le droit, réalité que le Conseil, juge et partie, a parfois tendance à oublier’ (J-L Dewost, ‘Conclusions’ in J Bourgeois, J-L Dewost, M-A Gaiffe (eds), La Communauté européenne et les accords mixtes: quelles perspectives? (Brussels, Presses Interuniversitaires européennes, 1997) 99 at 100–01); see also chapter five by Christophe Hillion in this volume.

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Beware of the Trojan Horse VI.

CONCLUSION

More then 50 years after Van Gend en Loos, the EU legal order is still in search of the proper modalities to interact and interconnect with public international law through international dispute settlement whilst safeguarding its own autonomy. Whereas the problem is mainly internal to the EU, all too often the solution lies with the international community and the willingness of third States to understand and accommodate the difficulties ensuing from the European integration process. A currently preferred solution, namely, the inclusion of declarations of competence, however appealing at first sight, has the unwarranted effect of exporting internal EU problems to the international context. On the contrary, it is in the interest of both the EU and the international community that the opposite movement is set in motion, whereby matters internal to the EU but arising at an international level are simply sent back to the EU legal order. This would be largely facilitated by the general acceptance of the joint liability of the EU and its Member States vis-à-vis third countries, as well as by the systematic introduction of a judicial disconnection clause, as set out above, in all (mixed) agreements. A further prerequisite for the smooth interlocking of the EU legal order and public international law appears to be full respect by the Member States for the duty of loyalty and cooperation as enshrined in ex Article 10 TEC (new Article 4(3) TEU), not just in relation to negotiations under mixed agreements but also when concluding agreements on their own and in the context of international dispute settlement. In so doing, they could perhaps anticipate the need for further clarifications by the ECJ, which might well lead to the acceptance of the above-mentioned, and for the Member States a far-reaching ‘Open Skies track’ to complement the ‘Haegeman track’ already introduced in MOX Plant.

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10 International Responsibility for EU Mixed Agreements PIETER JAN KUIJPER*

I.

INTRODUCTION

T

HE SO-called inductive approach to international law, as advocated and practised by Georg Schwarzenberger and Bin Cheng, described and analysed international law primarily through the case law of international courts and tribunals.1 Such an approach might also be beneficial for the study of the international responsibility for breaches of mixed agreements concluded by the European Union (‘the Union’)2 and the Member States on the one hand, and one or more third States on the other hand.3 Such an approach, as will be

* This contribution was substantially reworked in January 2010 to take account of the changes introduced in European Law by the Treaty of Lisbon and by the new draft articles on the Responsibility of International Organizations contained in the 2009 Report of the International Law Commission. 1 G Schwarzenberger, International Law as applied by International Courts and Tribunals (London, Stevens & Sons, 1976); Bin Cheng, General Principles of Law, as applied by International Courts and Tribunals (Cambridge, Grotius, 1987). 2 Under the Lisbon Treaty the European Union (now mainly the Common Foreign and Security Policy, CFSP) and the former European Community have a single international personality under the name European Union. In principle the Union can now conclude international agreements that include both CFSP matters and matters that formerly were part of Community external relations and now fall under the Treaty on the Functioning of the European Union (TFEU), see Art 218 TFEU. It is conceivable that this could lead to fewer mixed agreements being concluded. 3 See the formula used in Art 1 of Agreement Creating an Association Between the Republic of Turkey and the European Economic Community, [1973] OJ C/113/2 (‘the Ankara Agreement’). In mixed agreements with more than one third party the formula ‘the European (Economic) Community and the Member States of the one part’ is almost never used, and hence it is very often somewhat unclear to third parties to multilateral mixed agreements, at least on the face of the agreement, that the Community and its Member States operate, or ought to operate, as ‘one party’, of which the parts have complementary powers, which ideally entitle it to operate as a single whole when the Community’s powers are in play, and separately when the Member States’ powers are. Obviously this should have consequences for the question of responsibility for breach of the agreement.

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International Responsibility for EU Mixed Agreements demonstrated below, leads us initially not to make a distinction between mixed agreements and other agreements, simply because the international courts in question do not make much of a distinction between them; they are simply concerned with the responsibility of the Union and/or of the Member States. Viewed from this perspective, the European Court of Justice (ECJ) is just another international court that has made some oblique statements on the issue of responsibility, mainly in reference to declarations of competence. In the same inductive vein, a few things will be said about the practice of the institutions and the Member States where it concerns responsibility for breach of mixed agreements, as well as certain provisions in mixed agreements which provide for the eventualities of responsibility for their breach. After these introductory remarks, the draft by the International Law Commission (ILC) on the Responsibility of International Organisations4 will be discussed and contrasted with the practice of Union participation, or rather nonparticipation, in major international organisations and treaty regimes relating to transport and the environment, domains in which the EU has developed considerable and important internal legislation. This chapter will end with a few concluding remarks.

II.

A.

THE CASE LAW

The European Court of Justice

The ECJ has made merely oblique remarks about international responsibility in the case of mixed agreements. This should not be cause for surprise, as the cases concerned were mostly about the internal division of competence between the Union and the Member States, or about the power of the Court itself to interpret certain provisions of mixed agreements. Therefore, many of the cases that may come to the reader’s mind may be left to one side here.5 In a case concerning the Cotonou agreement, and in particular the European Development Fund (EDF), the ECJ has made it implicitly clear that, in the absence of a public declaration on the division of powers, the Community and the Member States are collectively responsible for fulfilling the obligations owed

4 The ILC Draft Articles on the Responsibility of International Organisations evolved considerably between August 2008 and August 2009. See International Law Commission, Report on the work of its sixtieth session, GAOR 63rd Session, Suppl. No. 10 (A/63/10), Ch. 7 and International Law Commission, Report on the work of its sixty-first session, GAOR 64th Session, Suppl. No. 10 (A/64/10), Ch. 4. 5 See eg Case C-300/98 Parfums Christian Dior SA v Tuk Consultancy BV [2000] ECR I-11307 and Case C-431/05 Merck Genéricos—Produtos Farmacêuticos Lda v Merck & Co Inc and Another [2007] ECR I-7001.

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Pieter Jan Kuijper to third States under a ’bilateral’ mixed agreement.6 The same reasoning seems to underpin the infringement case on the Etang de Berre, where France was condemned for not having fulfilled the obligations flowing from a mixed agreement, even if those obligations fell within an area that was not fully covered by existing Community legislation. The idea here seems to have been that, if—in the absence of a declaration of competence relating to the international agreement in question7—the Community and France were jointly responsible for controlling effluents from land into the Etang de Berre (a nearly fully enclosed, semi-brackish ‘sea lake’ connected to the Mediterranean), the Community had an interest in preventing France from triggering that responsibility by breaching the mixed agreement. This applied even if the legal area in question fell largely within France’s own competence. The infringement case served such prevention.8 Thus the ECJ’s sole contribution to the question of international responsibility under mixed agreements is that responsibility is shared, if there is no declaration of competence. It is interesting to note that the Court originally seemed to view without favour the making of such declarations by Community institutions. In 1978 Court stated that it is not necessary to set out and determine, as regards other parties to the Convention, the division of powers in this respect between the Community and the Member States, particularly as it may change in the course of time … it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene.9

Since then this position has changed dramatically; nowadays the Court regards such declarations as normal, useful and as an aid to interpretation.10

B. The European Court of Human Rights The greatest contribution to dealing judicially with the responsibility of international organisations and their Member States, does not come from the ECJ but from the European Court of Human Rights (ECtHR) and from the World Trade 6 Case C-316/91 European Parliament v Council [1994] ECR I-625, paras 24–35. Note in particular para 33, where the Court said, after having stated earlier in para 29 that the Convention was concluded by the then Community and the Member States of the one part and the ACP States of the other part, ‘[i]t follows from the above that, in accordance with the essentially bilateral character of the cooperation, the obligation to grant “the Community’s financial assistance” falls on the Community and on its Member States, considered together.’ See also above n 3 7 Barcelona Convention for the Protection of the Mediterranean Sea Against Pollution 1976, 1102 UNTS 27, and the Athens Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources 1980, 1328 UNTS 105. 8 Case C-239/03 Commission v French Republic (‘Etang de Berre’) [2004] ECR I-9325, see esp paras 26, 29–30. 9 Ruling 1/78 IAEA [1978] ECR 2151, para 35. 10 See, eg, in Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635, paras 104, 116.

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International Responsibility for EU Mixed Agreements Organisation (WTO) Dispute Panels (‘the Panels’); and this even in the absence of any declaration of competence (WTO), or even without the Community being a party to the international agreement in question (the European Convention on Human Rights (ECHR)11). The concern of the ECtHR, and before it the European Commission of Human Rights, has always been that the Member States, and not the EU itself, are Parties to the ECHR. Hence the interest of these bodies has always been to construe the case before them in such a way that the allegedly illegal measure was attributable to the Member State rather than to the EU, or at the very least that the victim of such measure was within their jurisdiction.12 Thus in 1990, the European Commission of Human Rights in M & Co v Germany decided that even ensuring enforcement of a judgment of the ECJ in Germany did not mean that ‘the competent German authorities acted quasi as Union organs and are to that extent beyond the scope of control exercised’ by the organs of the ECHR13; a position later fully adopted by the European Commission in WTO cases.14 With all due respect— that would also seem to be entirely applicable to the enforcement by national authorities of ECJ judgements as prescribed by Article 280 TFEU together with Article 299 TFEU (formerly Articles 244 and 256 EC), which is, after all, a quasi-automatic act.15 However, the difference between the ECHR and the WTO is that the EU is not a Party to the former but is a co-Party with the Member States to the latter, and hence the approach which regards the Member State authorities as organs of the Unions is unpalatable to the (quasi) judicial organs of the ECHR, but less so to those of the WTO (as we shall see below). Later cases go on in the same vein, the Bosphorus case16 being a prime example. The directly applicable regulation on sanctions against Yugoslavia, combined with the very strict interpretation given by the ECJ of the relevant sanctions regulation with respect to Yugoslavia,17 can be said to have removed the last

11

The European Convention on Human Rights and Fundamental Freedoms 1950, ETS 005. Art 1 of the ECHR enjoins the High Contracting Parties to secure to everyone within their jurisdiction the rights and freedoms of the Convention. 13 M & Co v Federal Republic of Germany, App No 13258/87 (1990) 64 DR 138. 14 See below n 25 ff and accompanying text. 15 See Art 280 TFEU (which refers to Art 290 TFEU), Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union (Treaty of Lisbon), [2008] OJ C/115/1. The only action the national authorities may undertake is the verification of the authenticity of the certified document containing the Court’s judgment; for the rest, they are obliged to apply their normal national procedures for the enforcement of civil judgments in favour of the judgment of the ECJ. 16 Bosphorus Hava Yollari Turizm Ve Ticaret Antonim S¸irketi (Bosphorus Airways) v Minister for Transport, Energy and Communications, Ireland and Another, App No 45036/98 (2005) 42 EHRR 1:251. 17 See Case C-84/95 Bosphorus Hava Yollari Turizm Ve Ticaret Antonim S¸irketi (Bosphorus Airways) v Minister for Transport, Energy and Communications, Ireland [1996] ECR I-3953, in which the ECJ interpreted the sanctions regulation for the benefit of the Irish courts. This interpretation was a strict one in the light of the text of the relevant Security Council Resolutions, see paras 10–18. This led to the following conclusion relating to the rights of the Turkish lessee of the Yugoslav-owned airplane (para 26): ’As compared with an objective of general interest so fundamental for the international 12

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Pieter Jan Kuijper vestige of discretion that the Irish prosecutorial and judicial authorities might have felt they had. This led the ECtHR to accept that the actions against Bosphorus could be attributable to the Community, or that at least it was not an exercise of discretion by the Irish authorities.18 However, this did not make any difference for the ECtHR’s ruling on the ultimate responsibility of Ireland— rather than of the Union—under the ECHR for the enforcement of the regulation, since it was under Irish jurisdiction that it took place.19 The Matthews case20 is wholly different from these other two cases, because there the wrongful implementation of the direct elections to the European Parliament in Gibraltar was indubitably attributed to the United Kingdom’s own action on the basis of primary EU law, namely the 1976 EC Act on Direct Elections of the European Parliament21 As primary EU law this was not subject to the jurisdiction of the ECJ, hence the ECtHR felt free to judge the United Kingdom’s action directly and to arrive at the conclusion that the lack of applicability of the Act on direct Elections to Gibraltar was contrary to Article 3 of Protocol I to the ECHR, which guarantees the right to free and regular legislative elections.22 As is well-known, in most of these cases, after having decided in favour of attribution of the facts to the particular Member State, thus ensuring its own competence to hear the case, the ECtHR nevertheless takes into account the fact that the Member State acted within the framework of the law of the EU, an organisation to which the Member State had transferred sovereign powers. As long as that organisation and its courts broadly maintained a level of human rights protection equivalent to that of the ECHR, the ECtHR would have a prejugé favorable with respect to the legality of the action in the light of the ECHR. However, in Bosphorus the ECtHR opened up the possibility of closer scrutiny in the particular case in question.23 Reviewing this case law of the ECtHR, one may broadly conclude that the Court on the one hand absolutely refused to attribute responsibility for Member States’ execution or implementation of Union acts to the EU, thus guaranteeing its own jurisdiction over these actions,24 given that the Union was not a Party to community, which consists in putting an end to the state of war in the region and to the massive violations of human rights and humanitarian international law in the Republic of BosniaHerzegovina, the impounding of the aircraft in question, which is owned by an undertaking based in or operating from the Federal Republic of Yugoslavia, cannot be regarded as inappropriate or disproportionate [under the right to property protected by Art 1 of Protocol 1 to the Convention].’ 18 See Bosphorus Airways v Ireland, above n 16, para 148. 19 Ibid, paras 135–38. 20 Matthews v United Kingdom, App No 2433/94 (1999) 28 EHRR 361. 21 See Decision 76/787/ECSC, EEC, Euratom, to which the Act on Direct Elections was annexed, 1976 OJ L 278/1. Later the provisions of the Act were integrated in the EC Treaty at Maastricht. 22 First Additional Protocol to the European Convention of Human Rights, 1952 ETS 009. 23 See eg Bosphorus v Ireland, above n 16, paras 155–56; the presumption of equivalence thus became rebuttable. 24 One may argue that by seemingly not looking behind the ostensible, the ECtHR appeared simply to act in conformity with the rule of attribution of Art 4 of the International Law

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International Responsibility for EU Mixed Agreements the ECHR. However, on the other hand the Court was ready to judge the responsibility for the act in question as if it came from the EU, while at the same time devising a special, light standard of responsibility for such ‘EU acts’ that the ECtHR would normally not grant to the State Parties to the ECHR. One may surmise that the ECtHR was willing to do this because there were indications that the ECJ was willing to follow its case law, and because the ECJ was in a position at least as strong as, if not stronger than, the ECtHR to have its judgments obeyed and carried out by the EU Member States under the rules of Community law with the help of the infringement procedure. Obviously this awkward situation is over, now that the European Union in accordance with Article 6(2) of the EU Treaty shall accede to the ECHR. This will enable the ECtHR to sit in judgment on the conformity of Union acts with the ECHR, just as it does on the acts of the EU’s Member States.

C.

WTO Panels and the Appellate Body

Let us now consider the contribution of WTO Panels and WTO Appellate Body to the question of responsibility of the EU and its Member States—and this time truly in the context of a mixed agreement, the WTO Agreement.25 This is a mixed agreement because during most of its lifetime thus far it has covered in part exclusive Community (now: Union) competence, in particular in respect of trade in goods, and in part mixed competence, primarily in the area of trade in services and trade related intellectual property rights.26 This circumstance may play a role in putting the cases discussed below in context. There are three of them and, perhaps non-coincidentally, they were all brought by the United States. The first case that caused controversy about who was responsible under the WTO Agreement was the case concerning the tariff treatment of specific computer equipment, so-called LAN equipment.27 Here, the United States tried to blame not just the EU, but also Ireland and the United Kingdom for the allegedly wrong tariff treatment of this equipment. Here we run straight into what the Commission in later cases began to call the problem of the model of executive federalism in the EU. Executive federalism implies that the EU has no layer of federal bureaucracy to speak of, and that directly applicable EU legislation, such as the sanctions regulation in the Bosphorus case,28 automatically becomes part of Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001), which states that the act of any State organ shall be considered an act of that State. On the other hand, in Bosphorus the ECtHR almost created responsibility without attribution for the State concerned and attribution with responsibility ‘lite’ for the Union 25 Agreement Establishing the World Trade Organisation (‘Marrakesh Agreement’), 1867 UNTS 154. 26 See Opinion 1/94 (WTO) [1994] ECR I-5267. 27 European Communities—Customs Classification of Certain Computer Equipment (adopted 22 June 1998) WT/DS62, 67, 68 (the so-called ‘LAN case’). 28 Above n 17.

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Pieter Jan Kuijper the law of the land of the Member States and is implemented and applied by Member State authorities. So much so that even in a core area of Union competence, such as the customs union, there is no Union customs service or Union layer of customs courts. However, for the Commission there was not the slightest doubt in this case: the case fell within pure Union competence. The relevant schedule of tariff concessions was the EC schedule; there were no longer any tariff schedules of the Member States, and this had already been so for a long time under the GATT.29 The Member States’ customs authorities were acting functionally as EU organs in applying EU customs law and tariffs.30 The United States, naively or disingenuously, was taking the intervention of the Irish and United Kingdom customs authorities at face value, invoking the fact that they had been told during consultations that there was no single EU customs authority. Since the customs administrations at issue were organs of those States, the wrongful behaviour contrary to WTO obligations contracted by the EU and the Member States in relation to the United States was attributable to those two States—who had remained members of the WTO—just as much as to, if not more than, the EU.31 In the end a solution was found in the Panel report that seems to rest on two pillars, namely: a) that the EU had effectively assumed responsibility for the alleged wrongdoing of the Irish and United Kingdom customs authorities; and b) through the astute way in which the Panel played with the word ‘in’. By saying that the case concerned alleged wrongful behaviour of customs authorities in the EU, including in Ireland and the United Kingdom, both parties could live with the result.32 The EU was better prepared the next time around and had more success with its executive federalism approach in Case DS 174 EC—Protection of Trademarks and Geographical Indications. Basically, the Panel accepted the EU explanation of what amounts to its sui generis domestic constitutional arrangements, namely: That Community laws are generally not executed through authorities at Community level but rather through recourse to the authorities of its Member States which in such a situation act de facto as organs of the Community, for which the Community would be responsible under WTO law and international law in general.33

The case was never appealed and this approach basically stands.

29 General Agreement on Tariffs and Trade 1994 of 15 April 1994 (GATT); see also Agreement Establishing the World Trade Organisation, above n 25. 30 LAN case, above n 27, paras 4.9–4.11 and 4.15. 31 Ibid, paras 4.12–4.14; see Art 4 of the Draft Articles on State Responsibility, above n 24. 32 LAN case, above n 27, paras 8.15–8.17. However, on appeal, the Appellate Body did not come back to the issue in an authoritative manner. 33 EC Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (adopted 20 April 2005) WT/DS174/R, para 7.98.

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International Responsibility for EU Mixed Agreements In the third case that needs to be mentioned, DS 315, EC—Selected Customs Matters, the Panel applied this approach to a generalised complaint about non-uniform application of EU customs law: In the light of the foregoing, the Panel concludes that the authorities in the Member States—including customs authorities designated for that purpose by the Member States and independent bodies, such as a judicial authority or an equivalent specialised body—act as organs of the European Community, when they review and correct administrative action taken pursuant to EC customs law.34

This aspect of the case, which touched only indirectly on the issue of attribution and therefore of responsibility, was left largely undisturbed in the appeals phase of the procedure. It is important to note that, especially in the last two WTO cases, the Commission was testing ideas that it also advanced in its communications to the ILC on the matter of the international responsibility of international organisations, and notably the attribution of a wrongful act to the organisation. However, the work of the ILC on the matter was not mentioned or referred to by the Panels concerned, or by the WTO Appellate Body. D. Excursus: the European Court of Human Rights and UN peace-keeping In this connection it is perhaps appropriate to turn briefly to another case that has caused a lot of reaction with respect to the question of attribution of certain acts of Member States to the international organisation of which they are members: the Behrami and Saramati case of the ECtHR of May 2007.35 There, the ECtHR arguably applied the criteria of Article 6 of the ILC Draft Articles on the Responsibility of International Organisations, ie the attribution to an international organisation of the conduct of agents or organs of States that are placed at the disposal of the international organisation.36 Such attribution is possible if the conduct of such agents or organs of (Member) States comes under the effective control of the international organisation. It is a model that is indeed very much applicable to UN peace-keeping operations, or to North Atlantic Treaty Organisation (NATO) and EU military and police operations. Such operations use national contingents, but there is nevertheless a fairly elaborate chain of command between the organisation’s military and civilian headquarters and these national contingents.37 It was this chain of command that was considered of prime importance by the ECtHR. Thus it considered the UN responsible for the 34 EC—Selected Customs Matters (adopted 11 December 2006) WT/DS315/R, para 7.553, and in the same vein paras 7.555–7.556. 35 Agim Behrami & Bekir Behrami v France App No 71412/01 and Ruzhdi Saramati v France, Germany & Norway App No 78166/01, (2007) 45 EHRR SE10 (’the Behrami and Saramati case’). 36 See 2009 ILC Report, above n 4, GAOR A/64/10, pp. 21 and 00. 37 Note that, on the other hand, for disciplinary matters and crimes and misdemeanours, the national contingents normally retain a large measure of autonomy in the framework of such

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Pieter Jan Kuijper detention of Kosovar civilians and for the non-clearance of cluster munitions leading to the death and maiming of local children, and not the States that had made national contingents available or KFOR (NATO Kosovo Force) that served in the localities where the alleged facts occurred (France, Germany and Norway). As a consequence the ECtHR considered the case inadmissible, since it had no jurisdiction ratione personae over the UN and no territorial jurisdiction over the place where the facts had occurred.38 There has been a lot of criticism of this inadmissibility ruling, arguing that the analysis of the chain of command was incorrect, also in the light of the ILC’s work on the responsibility of international organisations and UN practice in the field of peace-keeping.39 Whether all of this criticism is justified is debatable. However, the point here is a different one. This is, in spite of its possible flaws, a case that should also serve as a warning for the EU and its future military/police operations: direct operational command may not be necessary for the exercise of the kind of effective control that leads to attribution and thus to responsibility; KFOR was exercising direct operational command in this case, but the line of command up to the UN Security Council was clear and effective enough for the ECtHR to attribute KFOR’s actions or negligence to the UN and thus make it responsible, and not NATO or the troop-contributing countries. (It would seem that the tendency of the EU Council of Ministers and its secretariat thus far under the second pillar has been always to shift any responsibility for anything onto the troop-contributing countries.40) However, this kind of approach is not workable for what was formerly the Community side of external relations and is now covered by the TFEU. The situation in which Member States organs apply and enforce this part of EU law cannot properly be viewed as those States placing their organs at the disposal of the Union. Union law—and in particular regulations and decisions addressed to a Member State—simply has to be carried out by the State’s authorities, since

operations; see R C R Siekmann, National Contingents in UN Peace-keeping Forces (Dordrecht, Martinus Nijhoff Publishers, 1991), in particular ch 4. 38 Behrami and Saramati case, above n 35, paras 65–68. No party to the ECHR exercised jurisdiction over the Kosovo territory, see above n 12 and accompanying text. In the final dictum, the Court used different words, stating that as a regional court it was ‘unable’ to make the UN obey its ruling that the acts and omissions of national contingents or KFOR were attributable to the UN. 39 P Bodeau-Livinec, G P Buzzini and S Villalpando, Case note ‘Agim Behrami & Bekir Behrami v France; Ruzhdi Saramati v France, Germany & Norway. Joined App Nos 71412/01 & 78166/01. At . European Court of Human Rights (Grand Chamber), 2 May 2007’ (2008) 102 American Journal of International Law 323; see also M Milanovic´ and T Papic´ , ‘As Bad as it Gets: The European Court of Human Rights’ Behrami and Saramati Decision and general International Law’ (2009) 58 ICLQ 267 (a digital version of the article is available via the SSRN website , last visited 5 February 2009); see also K Mujezinovic´ Larsen, ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’ (2008) 19 European Journal of International Law 509. 40 This conclusion is based on the author’s close observation of these matters during his period of service as Director of External Relations and Trade in the Commission’s Legal Service. It is difficult, if not impossible, to find public documents of the Council on these questions.

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International Responsibility for EU Mixed Agreements they become automatically part of the legislative and regulatory landscape of the Member States, while still remaining part of the Union legal order. By a kind of dédoublement fonctionnel in the way of Scelle,41 Member State authorities, including judicial authorities, carry out their Union responsibility when applying or implementing Union law.

III.

THE RULES ON RESPONSIBILITY AND TREATY LAW

A. The ILC Draft Articles on the Responsibility of International Organisations and the EU This brings us quite naturally to the Draft Articles on the Responsibility of International Organizations.42 The ILC has worked on them at a considerable pace under the strong guidance of Giorgio Gaja, and they are modelled very strictly on the Draft Articles on State Responsibility.43 The rules on attribution (Articles 4–7), and in particular draft Article 6 that seems to have been largely inspired by UN peace-keeping operations and causes certain problems for the EU, have already been touched upon above. The other parts of the draft that raise interesting issues are those on the responsibility of an international organisation in connection with the act of a State and on the responsibility of a State in connection with the act of an international organisation. If one reads the few articles on these subjects that go beyond what is already in the Draft Articles on State Responsibility (namely, ‘aid and assistance’, ‘direction and control’ and the unlikely case of ‘coercion’), the impression one gets is that the ILC is obsessed by the idea of the organisation instrumentalising its Members in order to avoid its own obligations and the Members abusing the organisation in order to circumvent obligations incumbent on them. This is much the same spirit that seems to dominate the case law of the ECtHR in relation to the Member States when they carry out Union legislation and are accused of breaching their human rights obligations under the ECHR in the process. However, the approach of the ECtHR is mitigated by taking into account the reality that the Member States are truly operating within the framework of the Union legal order which is presumed, until proven otherwise, to provide an ‘equivalent protection’ to the ECHR.44 41 See eg G Scelle, ‘Le phénomène juridique du dédoublement fonctionnel’ in W Schätzel and H J Schlochauer (eds), Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg (Frankfurt, V. Klostermann 1956) 332; see also the Symposium on Scelle’s thought in the first issue of the European Journal of International Law, with as most relevant contributions: H Thierry, ‘The Thought of George Scelle’ (1990) 1 European Journal of International Law 193; and esp A Cassese, ‘Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International Law’, ibid, 210. 42 The Draft Articles on the Responsibility of International Organizations, above n 4. 43 The Draft Articles on State Responsibility, see above n 24. 44 See above Section IIB.

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Pieter Jan Kuijper One of the more worrying aspects of the present state of the draft and an illustration to what extent it is influenced by the idea of the organisation instrumentalizing the Members is Article 16.45 It covers the case of an organisation that binds or authorises a Member State to commit an act that would be wrongful if committed by the organisation and would circumvent an international obligation of the organisation, and would thereby incur responsibility for the act of the Member State. This would seem also to cover the case of a Member State carrying out normally a Union act that under international law may be unlawful. It is not exactly a very enticing prospect, at least from the Union perspective, to see an action by a Member State, which is entirely normal in the course of EU business, characterised by a major international legislative convention as circumvention of the obligations of the organisation. In the EU perception of this situation it is simply a breach (or not) of its obligations by the European Union or for which the Union at least bears responsibility. Much could be gained, if reference could be made to the rules of the organisation here, as elsewhere in the Draft Articles. If the rules of the organisation can be relied upon to help determine which individuals can engage the organisation in the commission of a wrongful act,46 there should be no problem in having recourse to the rules of the organisation to decide which acts of the organisation are binding on its Member States. Thus the organisation would be responsible if the Member States, under the rules of the organisation, had to carry out an act that would turn out to be wrongful according to the international obligations resting upon the organisation – an act, moreover, that could only be withdrawn or changed by the organisation in question, not by the Member States, as would at least be the case in the European Union. It is to be noted that Article 16, like Article 60 discussed below, uses the expression “incurs responsibility” which indicates that this kind of responsibility does not need attribution which according to Article 4 of the draft Articles is one of the fundamental elements of an internationally wrongful act of an international organization. This mechanism of “incurring responsibility” also entails

45 Draft Articles on the Responsibility of International Organizations 2009, above n 4, UN Doc. A/64/10, p 24. The text of Art 16 reads as follows: ‘(1)An international organization incurs international responsibility if it adopts a decision binding a member State or international organization to commit an act that would be internationally wrongful if committed by the former organization and would circumvent an international obligation of the former organization.(2) An international organization incurs international responsibility if: (a) It authorizes a member State or international organization to commit an act that would be internationally wrongful if committed by the former organization and would circumvent an international obligation of the former organization or recommends that a member State or international organization commit such an act; and (b) That State or international organization commits the act in question because of that authorization or recommendation. (3) Paragraphs 1 and 2 apply whether or not the act inquestion is internationally wrongful for the member State or international organization to which the decision, authorization or recommendation is directed.’ 46 Art 4 of the Draft Articles on the Responsibility of International Organizations 2009, above n 4.

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International Responsibility for EU Mixed Agreements that the norms that are drafted in these terms are primary norms, in contrast to most norms on responsibility of States and of international organizations, which are secondary norms Similar criticism as that directed to draft Article 16 may be levelled at the provisions which cover the ‘evasion’ of international obligations by a State by ‘using’ an international organisation to this end. Draft Article 6047 puts it in rather stark terms, probably inspired by the ECtHR cases discussed in section II.B. above, but not complemented by the mildering notion of ‘equivalent protection’. According to draft Article 60 a State member of an international organisation incurs responsibility if it takes advantage of the fact that the organisation has competence in relation to an obligation that State seeks to avoid complying with, and the organisation then, prompted by that State takes a decision, or acts, not in conformity with the obligations of its Member State.48 This rule, if applied, may place the European Union in quite awkward situations in real life. There are numerous examples of the Union acquiring substantive powers in certain international domains as a consequence of its developing extensive internal legislation,49 while on the other hand international organisations and third States, sometimes with the tolerance or even the connivance of the Member States, may make it difficult, if not impossible, for the Union to exercise these powers by becoming a member of, or even an observer in, the relevant international organisations or a party to the relevant international conventions, by limiting accession to States. A good example is provided by the International Civil Aviation Organisation (ICAO), which has consistently taken an unfriendly attitude to the Union’s participation in the organisation or adhesion to its conventions, whilst in the 47 Draft Articles on the Responsibility of International Organisations, above n 4. Art 60 reads as follows: ‘(1) A State member of an international organization incurs international responsibility if it seeks to avoid complying with one of its own international obligations by taking advantage of the fact that the organization has competence in relation to the subject matter of that obligation, thereby prompting the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation. (2) Paragraph 1 applies whether or not the act in question is internationally wrongful for the international organization. 48 It is to be noted that the the drafting of Article 60 in the 2009 version of the Draft Articles is less objectionable than the language of its predecessor Article 28 in the 2008 version that made a State member of an international organization incur responsibility “if it circumvents one of its international obligations by providing the organization with competence in relation to that obligation” and the organization then commits an act that breaches that obligation, had it been the State that committed it. However, in the commentary to the article the word “circumvention” remains and the essence remains the same: the international organization is here primarily seen as a vehicle for circumventing State obligations. 49 According to the so-called AETR doctrine, Case C-22/70 Commission v Council (‘AETR case’ concerning the European Road Transport Agreement) [1971] ECR 263. A summary and development of the present state of the ECJ’s case law on this doctrine can be found in Opinion 1/03 Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 7 February 2006 [2006] ECR I-1145, paras 43–58. See also P J Kuijper, ‘The opinion on the Lugano Convention and the Implied External Relations Powers of the European Community’ in B Martenczuk and S Van Thiel (eds), Justice, Liberty, Security. New challenges for EU External Relations (Brussels, VUB Press, 2008) 187.

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Pieter Jan Kuijper meantime the EU has developed rapidly expanding legislation on air transport and on environmental issues concerning air transport.50 As a consequence, when Community legislation banned certain models of airplane from European skies for reasons of noise pollution,51 the EU was not capable of properly shouldering the responsibility for it in the organisation. Then, when a State Member of the ICAO used a quasi judicial procedure in the organisation against the EU legislation by attacking all the EU Member States in the ICAO, the defence had to be organised in a highly artificial manner. The EU Member States all selected the same individual to defend them in ICAO meetings and, allegedly by pure coincidence, this person was the Director-General of the Commission Legal Service.52 Obviously one can take the view that this is a solution in the best pragmatic tradition of the EU, as well as in the circumstances a proper application of the duty of cooperation and mutual loyalty between Member States and institutions under Article 4(3) TEU (formerly Article 10 EC). On the other hand, the situation in the ICAO remains highly unsatisfactory, and it would be better if the application of Article 4(3) was applied more diligently, especially by the Member States, in gaining access for the EU as a full member of the ICAO, presumably alongside the Member States. The impression of circumvention of the Member States’ international obligations through Union legislation in the circumstances is entirely artificial and, on the most charitable interpretation, a consequence of the realities of other international organisations and treaty systems lagging behind the realities of the evolution of the legal system of the European Union. For that reason alone the notion of circumvention should not play an important role in the drafting of the rules on the responsibility of international organisations. Another example of a similar nature is the International Maritime Organisation (IMO) and the conventions negotiated within its framework, which relate in large measure to pollution of the seas caused by ships, a domain in which EU legislation has existed for some time and has grown considerably following serious oil spill accidents in recent years, such as the Erika case.53 The IMO has not made life easy for the Union, even though the Commission is an observer,

50 On the recent developments in the position of the EU in international organisations and the obstacles put in the way of EU participation, see eg 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 CMLRev 41. 51 Council Directive 92/14/EC of 2 March 1992 on the limitation of the operation of aeroplanes covered by part II, chapter 2, volume I of annex 16 to the Convention of International Civil Aviation, second edition, [1988] OJ L/76/21. 52 For a report on this episode, see eg ICAO C-MIN 161/4 and C-DEC 161/5 of the ICAO Council Chamber meetings on 25 November 2000, available on the website of the International Civil Aviation Organisation , last visited 5 February 2009. The EU Member States were represented by Jean-Louis Dewost. 53 The Erika was an oil tanker that sank off the coast of France near Brittany on 12 December 1999 spilling a load of approximately 20,000 tons of oil into the sea, causing an environmental disaster.

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International Responsibility for EU Mixed Agreements and the important International Convention for the Prevention of Pollution from Ships of 1973,54, also known as ‘Marpol 73/78’ (‘the Marpol Convention’), has never been opened for accession to the European Union, even though the EU has broadly included its provisions in Union law.55 All its Member States, however, have become Parties to the Marpol Convention. Given this situation, the ECJ recently decided that the EU was not bound by Marpol, and it was not ready to give direct effect to the Marpol Convention but at best was ready to ‘take account’ of Marpol provisions in interpreting the relevant Union law.56 If the EU is not bound by Marpol—and indeed there is no indication that it is even indirectly bound57—again the impression is created that Union legislation may not be in conformity with the Convention, especially since the Court cannot and will not give direct effect to the Marpol Convention. However, once more, this is a consequence of the world at large not being capable, or being unwilling, to keep up with the evolution of Union external relations powers. In another example of this kind, the Convention on International Trade in Endangered Species (the so-called ‘CITES Convention’)58, the situation is characterised less by ill-will than by incapacity to act, but the fundamental problem remains the same. A clause foreseeing the accession of so-called Regional Economic Integration Organisations (REIOs—in reality only the EU) has been provided for since 1983,59, while the Union has taken the necessary autonomous

54 International Convention for the Prevention of Pollution From Ships 1973, as modified by the Protocol of 1978, available on the website of the International Maritime Organisation , last visited 5 February 2009. 55 See Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, [2005] OJ L/255/11. 56 Case C-308/06 The Queen, ex p International Association of Independent Tanker Owners (Intertanko) and Others v Secretary of State for Transport [2008] ECR I-4057, paras 47–52. Note that the formula ‘to take account of ’ is weaker than the so-called ‘conforming interpretation’ approach, according to which the ECJ is ready to interpret Union law, if at all possible, so as to conform to binding treaty provisions which have no direct effect or to rules of customary international law; see Case C-89/99 Schieving-Nijstad vof and Others v Robert Groeneveld [2001] ECR I-5851, as a far-reaching example of conforming interpretation to a treaty provision (Art 50 TRIPS), and Case C-286/90 Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp [1992] ECR I-6019 as an example of interpretation in conformity with rules of customary law. 57 The ECJ rejected also the so-called ‘succession hypothesis’; see Joint Cases 21–24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219, positing the succession of the EEC to the rights and obligations of the Member States under the GATT. 58 Convention on International Trade in Endangered Species of Wild Fauna and Flora of 3 March 1973, 993 UNTS 243 (‘CITES Convention’). 59 See the so-called Gaborone amendment of 30 April 1983 to CITES (addition of paras 2–6 to Art XXI CITES). This amendment will enter into force 60 days after the day on which 54 of the 80 States that were party to CITES on 30 April 1983 have ratified it. Currently 47 of these 54 have ratified the amendment. See , last visited on 8 February 2009.

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Pieter Jan Kuijper implementation measures ever since the CITES Convention was first negotiated.60 However, it has proved impossible to assemble the necessary ratifications for the REIO clause to become an approved amendment to the CITES Convention. Moreover, according to draft Article 61 of the Articles on the Responsibility of International Oragnizations, a Member State of an international organisation is responsible for an internationally wrongful act of that organisation if: a) it has accepted responsibility for that act of the international organisation; or b) it has led the injured party to rely on its responsibility. This creates endless possibilities for mischief in the case of mixed agreements. Member States of the EU may commit an internally illegal act when they declare, or make another Party rely on, their responsibility for, for example, a completely harmonised part of (say) banking services in a mixed agreement. However, in the meantime they might have created facts on the ground in the international arena that will be difficult to undo and which may seriously influence the capacity of the Union to act on the international scene. It is clearly necessary that the EU lays down internal rules with respect to the possible assumption of international responsibility for breach of mixed agreements by both the Union or the Member States. More generally, creating clear internal rules about the division of powers and responsibility between Member States and the Union, as well as about the possible assumption of such powers vis-à-vis third States, for instance in the conclusion decisions of the Council approved by the European Parliament,61 may be advantageous for the Union, now that the ILC in its last meeting has added a new Article 63 to the draft Articles on the Responsibility of International Organizations.62 This Article, bearing the title Lex specialis, seems to create the possibility for “rules of the organization applicable to the relations between the international organization and its members” to be regarded as a lex specialis that may set aside the rules of the draft articles on the responsibility of international organisations in specific instances. It remains to be seen whether this provision

60 Council Reg (EEC) No 3626/82 on the implementation in the Community of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, [1995] OJ L/284/3. The CITES Convention was attached to this Regulation that was based on Art 235 EC. This Regulation was replaced by Council Reg No 338/97 on the Protection of Species of Wild Fauna and Flora, [1997] OJ L/61/1. 61 See Article 218(6) TFEU (formerly Article 300(2–4) EC). 62 The text of Article 63 reads as follows: ‘These articles do not apply where and to the extent that the condition for the existence of international wrongful act or the content or the implementation of the international responsibility of an international organization, or a State for an international wrongful act of an international organization, are governed by special rules of international law, including rules of the organization applicable to the relations between the international organization and its members’, see Draft Articles on the Responsibility of International Organizations, 2009, n 4 above, p 38.

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International Responsibility for EU Mixed Agreements that at least gives the European Union a possibility to develop its own rules in this respect and thus to influence the international law of responsibility as applicable to it, is seen as sufficient for the Union to give up its critical view of the draft articles.63 All this makes one hark back to the ill-begotten Article 36bis of the Vienna Convention 1986. That article posed in many ways the same problems regarding the degree of ‘transparency’ or of ‘breaking through the corporate veil’ of international organisations, and of the EU in particular. That provision was originally considered interesting for the Union, if it could accommodate the principle of Article 216(2) TFEU (formerly Article 300(7) EC), namely that not only the institutions of the Union but also the Member States are bound by international agreements of the Union.64 However, in his original draft the ILC Rapporteur, Professor Reuter, actually went a step too far, seeming to create direct treaty rights and obligations – and therefore also responsibility – for the Member States on the basis of agreements concluded by the EU alone, thus making at least the Commission into an opponent of his draft.65 As a consequence, the Vienna Convention 1986 has been ratified by very few States and not by the Community or its Member States, and thus it has yet to enter into force.66 What is interesting about the present debate about the responsibility of the EU and of the Member States, is that—if one considers the first draft of Article 36bis and how it sought to open direct treaty relations between the treaty partners of the EU and its Member States even when a treaty had been concluded by the EU alone—it becomes clear that the Member States and third States concerned have

63 For further details on these issues see 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?’, EJIL (forthcoming). 64 Note that this provision has been used recently to good effect on the international scene, when the EU Council agreed that the amendment to the TRIPs Agreement would be approved by (what was then) the Community alone, and that this approval should be accompanied by a declaration to the effect that this approval, under Art 300(7) EC, bound the Member States too. This declaration was to enable the Director-General of the WTO, in his role as depositary of the WTO Agreement, to count the acceptance for the Community under the amendment provision of Art XII WTO in the same way as for the purpose of voting under Art IX, fn 2; see Council Decision 2007/768/EC of 19 November 2007 on the acceptance, on behalf of the European Community, of the Protocol amending the TRIPs Agreement, done at Geneva on 6 December 2005, [2007] OJ L/311/35. 65 See eg P Manin, ‘The European Communities and the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations’ (1987) 24 CMLRev 457. Reuter’s draft of Article 36bis was amended at least two times by the ILC and in the end did not appear in the text adopted by the diplomatic conference that produced the 1986 Convention, see Pierre d’Argent, Annotation de l’article 36, dans: Olivier Corten & Pierre Klein, Les Conventions de Vienne sur le droit des traits, Commentaire article par article, Bruylant, Bruxelles 2006, Tome II, p 1487 ff. 66 On 5 February 2009 the Vienna Convention 1986 had 39 signatories and 40 Parties; see , last visited 5 February 2009.

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Pieter Jan Kuijper realised this wish through the practice of mixed agreements, especially so-called ‘false’ mixed agreements.67 These agreements create such direct Member State treaty relations in situations where there ought to be only EU treaty relations with the partner country. This also seems the preferred situation for some of the EU’s treaty partners, in particular the United States. It creates an extra guarantee for them and, if necessary, makes it possible for them to single out one—possibly a small— Member State and threaten it with responsibility for the breach as a whole. Especially if there has not been a declaration of competence, claiming joint and several responsibility is always a temptation.

B. Some practice with respect to responsibility for EU mixed agreements First of all it is important to repeat68 that no 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.69 Secondly, in all cases of a claim of breach of a mixed agreement, the Union’s institutions have to work with the Member States, either in the Council, when it concerns the EU reaction to such a claim, or directly when preparing the ‘defence’, whether it is being prepared for political consultations or for judicial procedures, whether it concerns a mixed competence or an exclusive competence. Let us take the example of the ‘Airbus/Boeing’ litigation in the framework of the WTO dispute settlement system, which falls within an exclusive Union competence, namely subsidisation, within a mixed agreement (the WTO). Never has there been such intense cooperation between the Member States concerned, the Commission services and company lawyers, both for the political discussions and for the WTO litigation. However, the Commission maintains its role as porte-parole of and as litigator for the Union.70 For practical reasons, there can be no question of drafting submissions to the WTO Panels and Appellate Body in a 67 ‘False mixed agreements’ are agreements which are mixed without there being an absolute legal necessity for their being so, as the Member State competence involved is not exclusive but only optional or possible; see Allan Rosas, ‘Mixed Union—Mixed Agreements’, in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer Law International, 1998) 125 at 131. 68 E Paasivirta and P J Kuijper, ‘Does One Size Fit All? The European Community and the Responsibility of International Organizations’ (2005) XXVI Netherlands Yearbook of International Law 169 at 188. 69 Franz Kafka, ‘Vor dem Gesetz’ in Franz Kafka, Das Urteil und andere Erzählungen (Frankfurt am Main, Fischer, 1964). 70 Case C-131/03P R J Reynolds Tobacco Holdings, Inc and Others v Commission of the European Communities [2006] ECR I-7795, para 94. This role is now formally laid down in Article 17(1) TFEU.

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International Responsibility for EU Mixed Agreements commission consisting of the Commission and all the Member States: it would be the death of any coherent application or defence before these jurisdictional organs. By explaining the details and the consequences of the division of competences between the EU and the Member States, the Commission always tries to get ahead of the situation in which a treaty partner could try to apply the joint and several responsibility scenario. It should be noted in this connection that, according to certain treaty regimes, the European Union and the Member States are bound to submit information to a partner in a mixed agreement on which of them is responsible for a breach of a particular provision of the mixed agreement. Article 6 of Annex IX to the UN Convention for the Law of the Sea (UNCLOS) is the first example of such a treaty regime.71 Should the answers be unclear or contradictory, the Union and its Member States will be subjected to joint and several responsibility. This puts a premium on the supply of quick and trustworthy information on the responsible Party (or Parties) for a particular breach, and was certainly intended as an incentive to the EU to put its house in order on responsibility for mixed agreements. There is little doubt that the rule of Article 6 of Annex IX to UNCLOS, which has been taken up in several other agreements, inter alia in the bilateral mixed agreement between the EU and the United States on the Galileo satellite system,72 should have led to the adoption of a more or less generalised solution on how to confront the consequences of the breach of a mixed agreement on the side of the EU and the Member States. Given the real-life need for cooperation between the EU institutions, in particular the Commission, and the Member States’ authorities in the case of responsibility for breach of Union and mixed agreements, it should perhaps not be too difficult to devise a number of more or less standardised clauses that could be included in the internal EU approval decisions of mixed agreements. Such clauses should give instructions on how to divide up responsibility for breach between the EU and its Member States if that is possible,73 and on how to allocate it by a rule of preponderance if that is not possible.74 They could be slightly adapted each time to the specific needs of the agreement that is being approved. Obviously there are a few simple rules of treaty law, regarding the good faith that is necessary in negotiating and in interpreting and applying treaties, which

71

Annex IX to the United Nations Convention for the Law of the Sea, [1998] OJ L/179/3. Agreement on the promotion, provision and use of Galileo and GPS based satellite systems and related applications, signed at Dromoland Castle on 26 June 2004, not yet entered into force, see , last visited on 8 February 2009. 73 For instance, such clauses may follow the declaration of competence that has been made or the system of the agreement itself, if discrete chapters or articles of the agreement can be clearly distinguished as falling under either Member State or Union competence. 74 If the powers of the Union and the Member States are too closely mixed up to separate them clearly the one from the other. 72

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Pieter Jan Kuijper should influence the way in which mixed agreements are negotiated and in which declarations of competence are made and interpreted. On the other hand, by now it may also be expected that the Union’s treaty partners will not act as if they are completely naive about the fact that they have negotiated a mixed agreement with the EU and its Member States, and what at least the minimum consequences of that are. Almost 40 years after the first mixed agreements were concluded, any Union negotiating partner should have some basic knowledge about the distinction between those agreements and pure Union agreements.75

C. What does all of this tell us about responsibility in the case of EU mixed agreements? Most of the cases that have been discussed in the framework of our inductive approach do not say anything explicitly about the responsibility for mixed agreements; they do so only obliquely. That was precisely the intention. It would not have been productive to begin once again with the familiar deductive reasoning on the basis of declarations of competence. What is the meaning of, and what are the consequences of, their presence or their absence? What if they are not clear? Cases and practice had to be looked at first. What the cases tell us is that international tribunals, notably WTO Panels, are close to accepting the special character of the executive federalism of the European Union, and to not assuming that Member State acts in the framework of such executive federalism require attribution of these acts to the Member States instead of to the Union. The cases also show that tribunals are, without much ado, also ready to accept that certain matters within a mixed agreement, such as customs in the WTO Agreement, fall within exclusive Union competence and should be treated as such, in spite of assertions by other WTO Members that EU Member States as WTO Members are equally fully responsible for the performance of these obligations. The cases also tell us that the only international court that was really confronted with the doomsday scenario of the alleged abuse of an international organisation in order to evade the international obligations of the Member States in the field of human rights, namely the ECtHR, in reality took a very nondramatic approach to that phenomenon by inventing the theory of de facto equivalence of the protection of human rights observed by the Union and its institutions. This leads to the paradox that the same strain of cases gives the impression of being inspired, on the one hand, by an almost paranoiac fear that 75 Just as any country that negotiated with Council for Mutual Economic Assistance (Comecon) countries in the past would have to know the minimum about the difference between State treaties, governmental and ministerial agreements, and just as any State negotiating with the United States today would be aware of the difference between a treaty and an executive agreement, and even an executive congressional agreement.

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International Responsibility for EU Mixed Agreements Member States may evade their obligations through an international organisation that is not, or rather cannot be, party to the same treaty as these Member States. On the other hand, perhaps as a kind of compensation, the cases seem to be inspired by an almost too lenient assumption that the organisation and its judicial organs will impose the same standards on itself and the Member States as the treaty in question.76 The situation with respect to so-called ‘closed’(i.e. not open to the EU) international agreements and organisations, resulting from the fact that—on the most charitable interpretation—certain agreements and organisations are not able to take into account the rapid development of the growth in Union legislation, leads to similar ‘perverse’ legal situations. The EU is considered almost obliged to shoulder responsibility for any failings in its legislation relating to such conventions and organisations, since its Member States are bound by them in more or less great numbers, although they have in the meantime transferred much of their powers in the field of these conventions and organisations by cooperating in the adoption of Union legislation. Such hard cases and perverse situations lead to bad law. It is therefore submitted that the ILC, when rethinking its draft on the responsibility of international organisations, should not pay them too much heed. It is rather the WTO strain of cases, that has been rendered within the framework of the normal functioning of the dispute settlement system and that was confronted with a ‘normal’ mixed agreement—namely the WTO Agreement—which should be valued for what it is. There is also no doubt that, more than 20 years after the then EC was given the incentive of Article 6 of Annex IX to UNCLOS, the EU should take up that challenge and put its own house in order in respect of responsibility for mixed agreements. As we saw above, that may even have positive influence on the general law of the responsibility of international organizations, since it can be recognized as lex specialis under the new rules on the responsibility of international organizations being discussed by the ILC.

76

This is the so-called ‘equivalent protection’ clause, see section II.B above.

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11 Mixity in Practice: Some Problems and Their (Real or Possible) Solution JENO″ CZUCZAI*

I.

INTRODUCTION

T

HIS CHAPTER CONCENTRATES mainly, but not exclusively, on practical legal questions that have arisen, in the context of the negotiation and conclusion of mixed agreements, prior to the entry into force of the Treaty of Lisbon. In relation to the former, it examines issues relating to the process of drawing up the negotiating directives, the so-called ‘second pillar clauses’, the appointment of the negotiator. In relation to the latter, it addresses some specific cases regarding the so-called enlargement protocols, the delayed ratification and the problem of joint deposition of ratification instruments by the Union and the Member States. Lastly it focuses, from a practical point of view, on the relevance and the function of a specific example of management of a treaty-based suspension procedure of a mixed agreement, that is the Cotonou Agreement. In the light of its limited length, this contribution aims to give only a general overview of some interesting questions which have recently arisen in the practice of mixity, and does not attempt to provide a complete inventory of all the relevant cases. II.

TREATY-MAKING PROCESS

A. General legal framework for managing mixity Taking into consideration that recently a colleague of mine published an excellent and very comprehensive article on mixity, in which he gave a detailed description * The views expressed are exclusively those of the author and cannot be attributed to the Council of the European Union or its Legal Service. The final text of this chapter was submitted in February 2009. Thereafter only editorial changes were made to reflect the renumbering resulting from the Treaty of Lisbon.

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Jeno″ Czuczai of all procedural and legal aspects of the treaty-making process in this field within the Council,1 as well as of the relevant case law and literature in this domain, I think that I can be brief under this heading and simply recall some of the main features of the legal framework, which are indeed important from a practical point of view and could help the reader better to understand the examples given later on in this chapter. As is known, the old EC Treaty addresses the negotiation of mixed agreements only to the extent that the agreement falls within the Community’s competence, and remains incomplete with respect to the question of mixity.2 However, in Opinion 1/94, the ECJ made it clear that: where it is apparent that the subject matter of an agreement or convention falls in part within the competence of the Community and in part within that of the Member States, it is essential to ensure close cooperation between the Member States and the Community institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. That obligation to cooperate flows from the requirement of unity in the international representation of the Community…3 (emphasis added)

With respect to subject matters of an envisaged mixed agreement which fall within the competence of the European Community (EC)4, based on the first sub-paragraph of Article 300(1) EC (replaced by Article 218((2)−(4)) FEU),5 the Commission takes the initiative by recommending to the Council that it be authorised to negotiate the agreement on behalf of the Community, and that the Council decides on such authorisation. The conduct of the negotiations by the Commission is subject to two legal constraints relating, in the first place, to the obligation to act within the framework of the negotiating directives which the Council may issue and, in the second place, to the obligation to consult the special committee which the Council appoints to assist the Commission in the negotiations. The special committee acts during the negotiations as a consultative body and as the forum in which the negotiating positions of the Member States are coordinated among themselves and with the Commission.

1 Jan Peter Hix, ‘Mixed Agreements in the Field of Judicial Cooperation in Civil Matters: Treaty-making and Legal Effects’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (Brussels, VUB PRESS, 2008) 211, esp 215 et seq. 2 An exception is Art 133(6) EC concerning, in particular, agreements relating to trade in certain service sectors, exception that is removed in new Art 207(6) TFEU. See further chapter eighteen by Alan Dashwood in this volume. 3 See Ruling 1/78 IAEA [1978] ECR 2151, paras 34–36. as well as ECJ Opinion 2/91 ILO [1993] ECR I-1061. Similarly, Opinion 1/94 WTO [1994] ECR I-5267, para 108; and more generally see the excellent chapter seven by Joni Heliskoski in this volume. 4 From 1 December 2009 the ‘EC’ is known as the ‘EU’ (Art 1 3rd subparagraph TEU) 5 See chapter thirteen by Ricardo Passos in this volume, and especially Art 218(3) TFEU in relation to the new term of ‘Union negotiator’.

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Mixity in Practice Concerning the conclusion of mixed agreements, it should be recalled that two parallel procedures take place: a) the national procedures of ratification, which take place in accordance with the constitutional requirements of each Member State; and b) the EU procedure of approval of the agreement. It is to be noted that the national procedures are the sole responsibility of Member States. The decision to conclude an international agreement constitutes the final stage in the process of approval of an international agreement within the Union legal order. It expresses the EU’s consent to be bound. From a procedural point of view, the conclusion of an international agreement by the Union requires a decision to conclude such an agreement to be taken by the Council in accordance with the procedure and voting mechanism established by Article 218 TFEU (ex Article 300 EC). Any agreement to which both the Union and the Member States are to become Parties is a ‘mixed agreement’, as it covers areas where the EU and its Member States share competences. The question arises as to the moment when both the Union and the Member States should become Parties to such international agreements. The answer is linked to the respective duties of the EU and its Member States with regard to the implementation of mixed agreements. In a situation where the competences are intertwined and often difficult to separate, the other Contracting Parties to an international agreement can be sure that the Union and its Member States are able to respect their commitments only if both the Member States and the EU become Contracting Parties to the agreement at the same time. Indeed, a situation where the Union has duly ratified an international agreement but not all its Member States have done so would lead to legal uncertainty for third countries, as they would not know which obligations are to be fulfilled by the EU and which are not. The same applies to situations where some Member States have ratified and deposited a mixed agreement but others, including the Union, have not. Those Member States who make the deposit unilaterally would not be in a position to ensure the full compliance of the agreement with respect to the parts of the agreement falling under EU competence. This is why the Court of Justice, in considering the issues arising from mixed agreements, has emphasised, as mentioned earlier, the need for close cooperation by the EU and its Member States throughout the whole treaty-making process. From a legal point of view it is necessary that both the Union and its Member States deposit the instruments of ratification as far as possible jointly, so that the agreement can enter into force for the EU and all of its Member States at the same time. In order to make this possible, all Member States are under the obligation to cooperate loyally, and therefore to launch their national ratification procedure in due time so as to facilitate a quick completion of the overall ratification process. 233

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Jeno″ Czuczai They should not delay their internal processes of ratification unduly so as to block the process of conclusion of international mixed agreements. Within the above-described legal framework, I should now like to turn to some practical examples, first in the field of the negotiating process.

B. The negotiation phase 1. Drafting negotiating directives (the place of the counter-terrorism clause) One of the practical requirements in terms of drawing up negotiating directives is that they should be concise, well-structured and legally accurate. Of course, repetitions should be avoided. Nevertheless, in (the) years preceding the entry into force of the Lisbon Treaty, the Commission’s draft negotiating directives had placed counter-terrorism clauses in different places, mainly under the ‘justice, freedom and security’ (ie justice and home affairs—JHA) Title. At the beginning, the preliminary position of Member States was that the counter-terrorism clause, as a second pillar clause6, should be put together with two sister-clauses under the then Common Foreign and Security Policy (CFSP) Title (ie with the nonproliferation of weapons of mass destruction (WMD) and the International Criminal Court (ICC) clauses) within the political dialogue chapter, and there was no need in the negotiating directives for a specific reference to that under the JHA Title. The Commission argued as follows: in the Albanian Stabilisation and Association Agreement (SAA),7 a typical mixed agreement,8 the provisions on fighting against terrorism are situated both under Title I (general principles, inter alia, together with the standard human rights clause9) and under Title VII on justice, freedom and security, more precisely in Chapter III on cooperation in combating money laundering, terrorism financing, illicit drugs and cooperation in counter-terrorism. In this latter Title the relevant Article reads as follows: In compliance with the international Conventions to which they are party and their respective laws and regulations, the Parties agree to cooperate in order to prevent and 6 As is known, the so-called ‘Pillars system’ of the EU no longer exists following the entry into force of the Treaty of Lisbon. Nevertheless, the CFSP (and the related political clauses) preserves its legal specificity, based on new Title V TEU. In practical terms therefore, the proper placing in a mixed agreement of political clauses is still relevant from a legal (drafting) point of view. 7 See Council Doc 8164/06 of 22 May 2006, . 8 Concerning this SAA, it should be noted that in order for the then Community part to enter into force as soon as possible, an Interim Agreement was signed and concluded in Luxembourg on 12 June 2006; see Council Decision 2006/580/EC of 12 June 2006 concerning the signing and conclusion of the Interim Agreement on trade and trade related matters between the European Community, of the one part, and the Republic of Albania, of the other part, [2006] OJ L/239/1. The whole Albanian SAA entered into force on 1 April 2009. 9 See Art 5, which reads: ‘The Parties reaffirm the importance that they attach to the fight against terrorism and the implementation of international obligations in this area.’

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Mixity in Practice suppress acts of terrorism and their financing, especially those involving cross-border activities: (a) in the framework of full implementation of UNSC Resolution 1373 (2001) on threats to international peace and security caused by terrorist acts and other relevant UN resolutions, international conventions and instruments, (b) by exchanging information on terrorist groups and their support networks in accordance with international and national law, (c) by exchanging experiences with regard to means and methods of combating terrorism and in technical areas and training, and by exchanging experience in respect of the prevention of terrorism.10

This structural solution was eventually accepted by the Member States. In my view, this argument should be further examined, especially since the language of the above-quoted Article is in fact the standard text of the so-called second pillar counter-terrorism clause.11 In this context, it should be noted that the Council and European Parliament Regulation on the so-called Stability Instrument, which entered into force in December 200612 (hereinafter ‘the Regulation’), makes certain references to cooperation on counter-terrorism as a matter of development cooperation (but only in an institution-building dimension and concerning the related threats to law and order, to the security and safety of individuals, to critical infrastructure and to public health in this respect). Therefore in this sense, in practical terms, there is some basis for addressing cooperation on counter-terrorism under the then Community part of a mixed agreement since in the Regulation, for example, Article 4(1)a provides that assistance shall be provided for: strengthening the capacity of law enforcement and judicial and civil authorities involved in the fight against terrorism and organised crime, including illicit trafficking of people, drugs, firearms and explosive materials and in the effective control of illegal trade and transit. ... With regard to assistance to authorities involved in the fight against terrorism, priority shall be given to supporting measures concerning the development and strengthening of counter-terrorism legislation, the implementation and practice of financial law, of customs law and of immigration law and the development of international procedures for law enforcement.

It is thus possible to position some provisions in the negotiating directives, as far as cooperation on counter-terrorism is concerned, under the JHA-related cooperations’ part, in particular if the capacity-building aspects are underlined. Nevertheless, in my view, when the negotiations start and the legal drafting

10

See Art 84, entitled ‘Counter-terrorism’, in the above-mentioned Albanian SAA. For a more detailed analysis on the counter-terrorism clause, see S Smis and S Stephen Kingah, ‘The Utility of Counter-terrorism and Non-Proliferation of WMD Clauses under the EU–ACP Revised Cotonou Agreement’ (2008) 1 ICLQ 148, esp152 et seq; and A Hervé, ‘Clauses essentielles et clauses standards’ (forthcoming, manuscript available upon request, with permission of the author). 12 Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability, [2006] OJ L/327/1. 11

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Jeno″ Czuczai process of a specific mixed agreement is at issue, as will be explored further later on, special care should be taken as to where to put the counter-terrorism clause and how to draw up in general the provisions relating to counter-terrorism. In this respect, it is to be noted that the Cotonou Agreement is considered in general as an example where the former ‘inter-pillar mixity’ is demonstrated in practice. In the Cotonou Agreement (as amended in 2005)13 the three so-called CFSP clauses are grouped under Articles 11, 11/a and 11/b in Title Two (Political Dimension). In this context, however, another question arises, namely, whether it is correct—as seen in more recent practice—for the counter-terrorism standard clause to be put under the pre-Lisbon Community part of a mixed agreement, for example by moving the counter-terrorism clause from its original place (the CFSP part of a mixed agreement) to draft Title Five, entitled ‘Cooperation in other sectors’ of the same agreement, the provisions of which clearly fall under the former Community competence?14 It is evident that the political standard clauses do not fall under the competence of the former Community. It is also held that the old EC alone cannot conclude an agreement which would include the former second pillar standard clauses respectively on counter-terrorism and WMD, as well as clauses on references to the ICC and the fight against impunity of serious international crimes, because the three areas in question fall outside the scope of the former EC competences15 and the Commission must act within the limits of the powers conferred upon it by the Treaty and the objectives assigned to it therein (former Article 5 EC, replaced by Article 5 TEU). The place of a provision in an international agreement may have legal effects, since it can later be interpreted ‘having regard to the spirit and purpose of the provision in question and to the context of which it forms part’16 (emphasis added). It was concluded, therefore, that if the counter-terrorism clause were to be put in a chapter which falls clearly under then EC competence, that would create legal confusion and blur the clear-cut division of which issue falls under which competence. As recent cases show, this seems to have become the Commission negotiating practice, raising legal concerns. The ECJ practice, in my view, goes in the direction of confirming that the fight against international terrorism as such it is not a (pre-Lisbon) Community

13

[2005] OJ L/209/27. Since negotiations are still underway, I am not in a position to give more precise references to concrete cases, but I think the tendency is really important here. 15 See Case T-315/01 Yasin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 118. 16 See Case C-210/97 Haydar Akman v Oberkreisdirektor des Rheinisch-Bergischen-Kreises [1998] ECR I-7519, para 47 (Interpretation of the EEC/Turkey Association Agreement) and Case C-84/95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communitation and others [1996] ECR I-3953, para 11. 14

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Mixity in Practice objective.17 This may be derived from former Article 301 EC (new Article 215 TFEU), and in this context from the Opinion of Advocate-General Mengozzi in the ECOWAS case, in which it is said that18: CFSP covers ‘all areas of foreign and security policy’ with the exception of the forms of foreign policy which fall within the competence of the Community, such as the common commercial policy or the development cooperation policy … This argument is borne out, a contrario, by the only bridge specifically established by the Maastricht Treaty and retained in the current version of the EU Treaty, in accordance with Article 47 EU, between the Community activity involving economic sanctions under Articles 60 and 301 EC and the objectives of the EU Treaty specified in Article 11(1) concerning external relations. (emphasis added).

What, then, is the solution? I am convinced that it is to keep the three CFSP clauses (including the counter-terrorism clause) together under the political part of the mixed agreements, and to address only the capacity building-related cooperation aspects in the Community (or today the so-called TFEU-based ) part19.

2. Who should be the negotiator and which negotiating model to follow? Pre-Lisbon, the Council followed two separate avenues to mainstream the standard clauses into legally binding commitments: either the standard clauses were being negotiated in the framework of mixed agreements to be concluded by the then EC and its Member States, or the EU (represented then by the Presidency, assisted by the Secretary General/High Representative (SG/HR)) negotiated separately the CFSP-related political standard clauses on the basis of then Article 24 TEU (new Article 37 TEU) and Article 38 TEU (repealed by the Treaty of Lisbon). It is generally believed that both courses of action20 were 17 See Case T-306/01 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission [2005] ECR II-3533 paras 153–54, as confirmed in substance, but with a slightly different reasoning, which is not relevant, however, in this respect, in Joined Cases C-402/05 P and C-415/05P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission (3 September 2008, nyr), paras 226, 235. 18 Opinion of A-G Mengozzi in Case C-91/05 Commission v Council, 19 September 2007, para 123. This point of the Opinion, in my view, was indirectly confirmed by the Court in the judgment (paras 74, 95, 104) handed down on 20 May 2008 (nyr), even if, concerning the main action, the Court finally did not follow A-G Mengozzi’s recommendation and annulled the challenged 2004 Council Decision. See still in 3 C.M.L.R 5 (2008) as well as 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, esp 193–97; P Van Elsuwege, ‘On the boundaries between the EU’s First Pillar and Second Pillar: a Comment on the ECOWAS Judgment of the ECJ’ (2009) 3 The Columbia Journal of European Law 531, esp 534–35. 19 See, from a Lisbon Treaty point of view, the more-detailed analysis on these aspects in Chapter eighteen by Alan Dashwood in this volume. 20 In practice, there is even a third option, namely, when some negotiating directives expressis verbis provide for the involvement of the Presidency, assisted by the SG/HR, even if the Commission is the principal negotiator.

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Jeno″ Czuczai legally possible, and that a single agreement founded both on the former EC Treaty and the then EU Treaty was also possible provided that former Article 47 TEU (new Article 40 TEU) was respected. Let us now turn to the concrete examples: a) The first option is when only the Commission negotiates the whole mixed agreement, irrespective of which part falls under whose competence. In practice, this has been, until the entry into force of the Lisbon Treaty, the most typical option chosen by the Member States. However, in practical terms it should be noted that even if the Commission is the only negotiator, as far as the concrete negotiations are concerned, the experts of the Council Secretariat are invited to the negotiation sessions dealing with the former second pillar clauses (in particular as regards the WMD and the ICC clause). It should also be noted that in practice, competent experts of the Member States are also sometimes invited to those sessions, the subject matter of which clearly falls under the competence of the Member States, mainly with the aim of thus involving more use of Member States’ knowledge and experience.21 b) Another option in practice involves two negotiators: the Commission (in consultation with the appointed Council Working Group) as far as the former Community pillar is concerned; and the Presidency, assisted by the SG/HR or (when appropriate) by the Commission, concerning former second- and/or third-pillar subject matters. This negotiating modality is typical when the aim is either two agreements with two separate legal bases in the pre-Lisbon Treaties, or one agreement with double base juridique.22

C. The conclusion phase 1.

The so-called enlargement protocols

As to the conclusion phase, I should like to start with some interesting practical questions relating to the so-called enlargement protocols and their conclusion. As 21 A special new dimension is the role of the European Parliament in the negotiation phase, following the entry into force of the Lisbon Treaty (see Art 207(3) TFEU, as well as Art 218(10) TFEU). Further, see chapter thirteen by Ricardo Passos in this volume. 22 See, as a concrete example of the latter, Council Decision 2008/146/EC on the conclusion by the EC together with Council Decision 2008/149/JHA on the conclusion on behalf of the EU of the same (!) Agreement between the EU, the EC and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, [2008] OJ L/53/1 and L/53/50 subsequently. This model was followed again: for example, more recently when an Accession Protocol of a similar nature was also signed by the EU/EC and put under provisional application with the Principality of Lichtenstein too; see [2008] OJ L/83/3 and 5. Since the entry into force of the Lisbon Treaty, only the EU is a contracting party, but the legal basis issue remains crucial, especially if an agreement contains principally (but not exclusively) CFSP aspects; see chapter thirteen by Ricardo Passos in this volume.

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Mixity in Practice is known, former Article 300(3) EC (replaced by Article 218 (6) TFEU) provides that the Council shall conclude agreements after consulting the European Parliament. By way of derogation from this rule, based on former Article 300(3) EC, second indent, second sentence, in four cases agreements shall be concluded after the assent of the European Parliament has been obtained. These cases are: a) agreements referred to in former Article 310 EC (new Article 217 TFEU); b) other agreements establishing a specific institutional framework by organising cooperation procedures; c) agreements having important budgetary implications for the EC; and d) agreements entailing amendment of an act adopted under the procedure referred to in Article 251 EC (new Article 294 TFEU). In the last few years’ legal practice, option b) has raised some legal questions, in particular in the context of the so-called EU Eastward Enlargement Process. In more concrete terms, what procedure has to be followed if new Member States want to accede to already existing mixed agreements in light of Article 6(2) of the 2003 and 2005 Acts of Accession?23 As stated, in these cases the Council shall decide on the conclusion of such a protocol. Since May 2004, however, two interesting question have arisen: a) What is the relationship between Article 6(2)–(6) of the Accession Acts and former Article 300(1)–(3) EC in terms of procedure? b) What is the role of the European Parliament in the conclusion process of such protocols?24

23 Art 6(2) of the 2005 Act of Accession reads: ‘Bulgaria and Romania undertake to accede, under the conditions laid down in this Act, to the agreements or conventions concluded or signed by the present Member States and the Community, acting jointly. The accession of Bulgaria and Romania to the agreements or conventions concluded or signed by the Community and the present Member States acting jointly with particular third countries or international organisations shall be agreed by the conclusion of a protocol to such agreements or conventions between the Council, acting unanimously on behalf of the Member States, and the third country or countries or international organisation concerned. The Commission shall negotiate these protocols on behalf of the Member States on the basis of negotiating directives approved by the Council, acting unanimously, and in consultation with a committee comprised of the representatives of the Member States. It shall submit a draft of the protocols for conclusion to the Council. This procedure is without prejudice to the exercise of the Community’s own competences and does not affect the allocation of powers between the Community and the Member States as regards the conclusion of such agreements in the future or any other amendments not related to accession’. The corresponding article in the 2003 Act of Accession is almost identical. See Treaty on the Accession of Malta, Latvia, Estonia, Lithuania, Hungary, Slovakia, Czech Republic, Slovenia, Cyprus, Poland to the EU, [2003] OJ L/236/1. 24 After the entry into force of the Lisbon Treaty, this should be put in the context of Article 218(6) TFEU, see in this respect chapter eighteen by Alan Dashwood and chapter thirteen by Ricardo Passos in this volume.

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Jeno″ Czuczai In 1997,25 Allan Rosas raised the problem with regard to the 1991 Customs Union and Cooperation Agreement with San Marino26 and its ratification difficulties, but more specifically with regard to the legal difficulties which occurred after Austria, Sweden and Finland joined the EU on 1 January 1995. The problem was that France had not ratified the mentioned Agreement before the end of 1994, thus the then Community had not yet been able to conclude it. While the related 1994 Acts of Accession27 provided for the conclusion of an enlargement protocol for the purpose of the quick integration of these three new Member States into existing mixed agreements, this was only in the case of agreements already concluded. Lessons have been learned from this and similar cases, and that is why in the 2003 and 2005 Accession Treaties, under Article 6(2)28 of the respective Acts of Accession, an even more simplified procedure has been introduced for negotiating and concluding such enlargement protocols on behalf of new Member States. The practical solutions to the above-mentioned two issues, therefore, are the following: a) As far as the first question is concerned, the Article 6(2) solution to some extent and from a procedural point of view can be considered as a ‘lex specialis’ in relation to former Article 300(1)–(3) EC, at least as concerns the negotiation and conclusion process of such enlargement protocols.29 First, the Commission has a general mandate for negotiating all these protocols; secondly, the Accession Treaties in practice have empowered the Council to conclude, on behalf of the present Member States as well as the new ones, this type of accession protocol to either already concluded or just signed (which is a great development as opposed to the San Marino example from 1995) mixed agreements with third countries or international organisations (thus reducing the ratification burdens on the EU side). b) With regard to the question about the role of the European Parliament in the conclusion process of the enlargement protocols, there is no problem

25 A Rosas, ‘Mixed Union—mixed agreements’ in M Koskenniemi (ed), International Law aspects of the EU (The Hague, Kluwer Law International, 1998) 125, esp 134. 26 See Council Decision 2002/245/EC of 28 February 2002 on the conclusion of an agreement on cooperation and customs union between the European Economic Community and the Republic of San Marino and of the Protocol thereto following the enlargement which took place on 1 January 1995, [2002] OJ L/84/41. 27 See Documents concerning the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the EU (Luxembourg, EU Publications Office, 1996) 31. 28 See [2005] OJ L/157/17, 204–05. 29 It should be added, however, that from a substantive point of view, Art 6(2) of the Act of Accession relates to parts falling under Member States’ competence and the provision in fact replaces national ratification procedures, while former Art 300 EC (new Article 218 TFEU) relates to parts falling under then EC competence. In practice, however, both provisions are cited in the approving Council acts.

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Mixity in Practice with the association agreements—the assent procedure applies.30 But in case of the cooperation agreements, like the one, for example, concluded with Mexico,31 one may say that only the consultation procedure is applicable (since the fact that there will two more seats in the Cooperation Council, this fact, in my view, does not fall under the scope of the second option in former Article 300(3) EC, second indent, second sentence, as quoted above). The practice has followed this solution, and the Parliament also agrees on the use of the consultation procedure as far as cooperation agreements are concerned.32 2. Joint deposition of ratification instruments As already mentioned, the ECJ has established the principle of the duty of loyal cooperation between Member States and EU institutions in all stages of concluding mixed agreements in order to ensure the unity of international representation of the Union vis-à-vis the international community. It should be said, however, that there is still a problem with complying with this principle in full.33 I should like to draw attention to the three most recent examples where there has been substantial delay on the side of the Member States in concluding their ratification process, causing problems either with the approval procedure on behalf of the Union or with complying with the joint deposition requirement of the ratification instruments. 30 See eg Council Decision (EC) 2006/378 of 10 April 2006 concerning the conclusion of a Protocol to the Euro-Mediterranean Agreement between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, to take account of the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, [2006] OJ L/149/31, or Council Decision (EC) 2007/544 of 23 July 2007 concerning the conclusion of a Protocol to the Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, to take account of the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, [2007] OJ L/201/13. 31 See, eg, Council Decision 2008/271/EC of 25 February 2008 on the conclusion of a Second Additional Protocol to the Economic Partnership, Political Coordination and Cooperation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, to take account of the accession of the Republic of Bulgaria and Romania to the European Union, [2008] OJ L/86/27. 32 So far, based on Art 6 of the 2003 and 2005 Acts of Accession, 34 enlargement protocols have been concluded, out of which 17 cases have followed the consultation procedure (all of them are cooperation-type agreements) and 17 were concerned with the assent procedure (most of them are association-type agreements—one relates, for instance, to the free movement of persons agreement with the Swiss Federation, etc). 33 Further on the subject matter, see Hix, above n 1, at 224 et seq; and M Cremona, ‘Defending the Community Interest: the Duties of Cooperation and Compliance’ in M Cremona and B de Witte (eds), EU Foreign Relations Law—Constitutional Fundamentals (Oxford, Hart Publishing, 2008) 126, esp 157 et seq.

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Jeno″ Czuczai The first example occurred after the adoption of Council Decision 2007/513/ Euratom of 10 July 2007 on approving the accession of the European Atomic Energy Community to the amended Convention on the Physical Protection of Nuclear Material and Nuclear Facilities (CPPNM), which is a typical mixed agreement.34 The practical problem arising here is that, following this approval decision, the Community has not been able to deposit the acceptance document with the International Atomic Energy Agency (IAEA) since not all Member States have yet ratified the amended CPPNM, whereas, according to the Court’s case law mentioned above, the Union should deposit its ratification instrument jointly with the Member States for legal security reasons and in order to assure the unity of its international representation. This means in practice that, based on former Article 10 EC (replaced, in substance, by Article 4(3) TEU), as well as following Article 102 of the Euratom Treaty, those Member States which have not yet ratified the text must ratify it as soon as possible, whereas those who have already ratified it should notify the Commission of this fact and then wait for the joint deposition.35 What has happened, however, in this specific case, is that since 2005 only seven Member States have ratified the amended CPPNM, out of which five have already deposited the ratification document with the IAEA, while the remaining two await the joint deposition. This is not an ideal situation, especially bearing in mind the danger that in the meantime the amended CPPNM may enter into force while the European Atomic Energy Community is not yet a party to the amended Convention, since despite the fact that the Euratom has already completed its internal approval procedures,36 it now has to wait for all the other 20 Member States to ratify the Convention in order to fulfil the joint deposition requirement. The second recent example relates to the multilateral agreement on the establishment of the European Common Aviation Area (ECAA) between the European Community and its Member States and 11 other countries,37 which—on the insistence of the Member States and despite the fact that the

34

See [2007] OJ L/190/12. Art 102 Euratom reads: ‘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 member states concerned that those agreements or contracts have become applicable in accordance with the provisions of their respective national laws.’ In this respect, see also Art 192 Euratom. 36 See Commission Decision 2008/99/EC, Euratom of 19 December 2007 concerning the accession of the European Atomic Energy Community to the amended Convention on the Physical Protection of Nuclear Material and Nuclear Facilities, [2008] OJ L/34/3. As to the current state of play of the ratification process within the Euratom, see public document DS 284/08 of the Council Working Party on Atomic Questions (dated 3 March 2008), accessible at http//ec.europa.eu/dgs/energy_ transport/index_en.htm. 37 See Decision (EC) 2006/682 of the Council and of the Representatives of the Governments of the Member States meeting within the Council of 9 June 2006 on the signing and provisional application of the Multilateral Agreement between the EC and its Member States, and Albania, Bosnia and Hercegovina, Bulgaria, Croatia, Norway, Romania, Serbia, FYROM, Iceland, Montenegro and the UNMIK in Kosovo on the establishment of the ECAA, [2006] OJ L/285/1. 35

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Mixity in Practice Commission did not want mixity—finally also became a mixed agreement in 2006. However, nobody knows how many years the ratification process by all the 27 Member States will take, and that is why the chosen mixity was in this case debated in the academic literature, even if provisional application of the Agreement has been assured together with its signing on the EU side.38 The last most recent example concerns two draft Council Decisions, submitted by the Commission to the Council in August 2008, the first on the conclusion by the European Community of the UN Convention on the rights of persons with disabilities, the second concerning the conclusion by the European Community of the Optional Protocol to the above-mentioned UN Convention.39 From an EU law point of view this UN Convention is clearly a mixed agreement.40 It is to be noted that on 30 March 2007 the then Community signed only the Convention.41 In addition, it should be mentioned that so far only four Member States have ratified the Convention and its Optional Protocol. Moreover, they have deposited the relevant ratification instruments with the UN.42 In the meantime, both the Convention and its Optional Protocol entered into force on 3 May 2008. It seems reasonable and legally desirable, therefore, that the Union should wait until all Member States have ratified the Convention (and hopefully the Optional Protocol too) in order to be able to deposit the ratification documents jointly with them (which will take at least another one to two years)43. Such a requirement also means that, with regard to processing the above-mentioned two draft Council Decisions on the conclusion, it is really up to the Member States to decide upon whether they want to deal with those Commission proposals as a matter of urgency or not. Again, we see that mixity raises serious concerns in terms of delayed ratification. The key issue, however, is how to solve all the problems deriving from mixity in relation to ratification delays. It may be argued that ‘provisional application of the parts of the agreement that fall under exclusive Union competence is not a good solution. Provisional application can be terminated by either party without

38 See P Bombay and M Gergely, ‘The 2006 ECAA Agreement: Centrepiece of the EC’s Aviation Policy towards its Neighbours’ (2008) 6 Air and Space Law 214, esp 220 and 230–32. 39 See COM(2008) 530 final/2 vol I and COM(2008) 530/2 vol II. 40 See C Pettiti and B Favreau, Handicap et Protection du Droit Européen et Communautaire (Bruxelles, Bruylant, 2006); and M Zani, ‘La Convention de L’ONU relative aux droits des personnes handicapées’ (2008) 4 Revue de Droit International et Droit Comparé 551, esp 559 et seq. 41 See Council Doc 7404/07, available at the following Council website address: . 42 The current state of play of the ratification process may be found at the following UN website: (last visited on 6 November 2008). 43 It should also be noted that recently the Council adopted its concluding decision on the Convention, see Council Decision 2010/48/EC of 26 November 2009, (2010) OJ L /23/35. Ratification by all Member States is still far from complete, although the numbers which have ratified are growing.

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Jeno″ Czuczai further notice and without giving reasons’.44 Therefore, instead of provisional application, Kuijper, for example, submits that the Court has rendered lately a number of judgments relating to the duty of cooperation in the field of external relations, which have convinced me that it would be legally possible, by invoking this duty, to set a deadline for the Member States within which they have to have completed (positively or negatively) their procedures for ratification …45

Of course such a deadline could be set out in the draft Council Decision on the signing (and provisional application) of a mixed agreement, to be submitted by the Commission. Although I may agree that such a solution is legally possible, from a practical point of view, however, I have doubts whether it is feasible and realistic. My questions are the following: a) Even if the Commission were to submit a draft Council Decision with such a proposal, is it not up to the Member States to decide on whether they want to assume such an obligation or not? One may reasonably presume that some Member States would be hesitant to do so, for example due to constitutional law concerns at national level, or because it would restrict the sovereignty of their national Parliament in general. b) What happens if the deadline is not met by a Member State (because of the lack of the required parliamentary majority for passing the ratifying law)? Would the Commission bring the concerned Member State, being in violation of the relevant Council Decision, before the Court (based on Article 258 TFEU (ex Article 226 EC))?46 But the ratification process by Member States takes place purely based on national law, thus in practice, at least in certain cases, the Court would be in fact obliged to interpret and/or consider the applicable national law, especially constitutional law! Is this reasonable? Would not these cases just create additional unnecessary work for the Court? I would therefore rather agree with an approach which gave more trust and chance pro futuro to the EU, and would thus try to avoid mixity as much as we can in practice. Moreover, whenever it is possible, we should more frequently use in the future the previously mentioned instrument of the so-called ‘nouvelle

44 See P J Kuijper, ‘Of “mixity” and “double-hatting”—EU external relation law explained’, inaugural lecture on 23 May 2008 at the University of Amsterdam (2008) VossiuspersUva 12. 45 Ibid, at 19–20. 46 Since it should be recalled that under international law, signature of an international treaty by a State per se does not impose on the given State the obligation to ratify that treaty but only the obligation to act with good faith and not to defeat the object and purpose of the treaty prior to its entry into force; see eg Art 18 of the Vienna Convention on the Law of Treaties.

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Mixity in Practice mixité avec double base juridique’ too, which means one agreement but with two separate approval decisions, based on two separate legal bases in the Treaties.47

III.

SUSPENSION OF THE APPLICATION AND IMPLEMENTATION OF A MIXED AGREEMENT

When one talks about the CFSP clauses—in particular the so-called ‘human rights clause’ or the non-proliferation of WMD clause—which provisions as a rule are considered to be essential elements of mixed agreements,48 from a practical point of view the most important question is which procedure to follow in case of non-compliance with these clauses. The revised Cotonou Agreement of 2005 under Article 96 provides for a special procedural framework (including suspension of the operation of the Agreement as a last resort) in case of a ‘serious and flagrant violation’ of an essential element of the Agreement.49 In this respect, however, many experts had pointed out years ago50 that the EU should set up a more precise inter-institutional procedure (within the EU) to be followed in case of application of Article 96 of the Cotonou Agreement (including the suspension procedure too). Most recently a solution was agreed by the Council when, in April 2008,51 ‘the Council adopted a Decision approving the conclusion of an agreement enacting the number of amendments to the partnership agreement signed in Cotonou in June 2000 between the African, Caribbean and Pacific States (ACP) and the European Community’, which also contains the longawaited internal inter-institutional procedural rules with regard to an eventual full or partial suspension of the operation of the Agreement. Article 3 of this Council Decision provides that 1.

Where, at the initiative of the Commission or a Member State, after having exhausted all possible options for dialogue under Article 8 of the Partnership Agreement, the Council considers that an ACP State fails to fulfil an obligation concerning one of the essential elements referred to in Article 9 of the Partnership Agreement, or in serious cases of corruption, the ACP State concerned shall be invited, unless there is special urgency, to hold consultations in accordance with Articles 96 and 97 of the Partnership Agreement.

47 See above n 20; regarding ‘trans-pillar agreements’, see Kuijper, above n 44, at 19, although he seems clearly sceptical when concluding that ‘all in all trans-pillar agreements are not very likely to succeed’ (despite the Swiss example, quoted by him); see also chapter three by Ramses Wessel in this volume. Of course, in the context of the Lisbon Treaty, this means only one approval decision, but with a legal reference to Title V TEU as the legal basis regarding the CFSP, and another one in respect of the TFEU, see in more details chapter thirteen by Passos in this volume. 48 See Smis and Kingah, above n 11, at 163 et seq. 49 [2005] OJ L/209/27. 50 See Rosas, above n 25, 135–36. 51 See Council Doc 8619/08 (Presse 105) 29 April 2008; .

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Jeno″ Czuczai Where, at the initiative of the Commission or a Member State, informed in particular by reports by the IAEA, the OPCW and other relevant multilateral institutions, the Council considers that an ACP State has failed to fulfil an obligation stemming from Article 11b(1) of the Partnership Agreement on non-proliferation of weapons of mass destruction, the ACP State concerned shall be invited, unless there is special urgency, to hold consultations in accordance with Article 11b(4), (5) and (6) of the Partnership Agreement. The Council shall act by a qualified majority. In the consultations, the Community shall be represented by the Presidency of the Council and the Commission. 2.

If, on expiry of the deadlines for consultations provided for in Article 11b(5), Article 96(2) or Article 97(2) of the Partnership Agreement, and despite all efforts, no solution has been found, or immediately in a case of urgency or refusal to hold consultations, the Council may, pursuant to those Articles, decide, on a proposal from the Commission and acting by a qualified majority, to take appropriate measures including partial suspension.

The Council shall act unanimously in the case of a full suspension of application of the Partnership Agreement in relation to the ACP State concerned [emphasis added]. These measures shall remain in force until such time as the Council has used the applicable procedure as set out in the first subparagraph to take a decision amending or revoking the measures adopted previously, or where applicable, for the period indicated in the decision. For that purpose the Council shall proceed to review the above measures regularly and at least every six months. The President of the Council shall notify the measures thus adopted to the ACP State concerned and to the ACP–EC Council of Ministers before they enter into force. The Council’s decision shall be published in the Official Journal of the European Union. Where the measures are adopted immediately, notification thereof shall be addressed to the ACP State and to the ACP–EC Council of Ministers at the same time as an invitation to hold consultations. 3.

The European Parliament shall be immediately and fully informed of any decision taken under paragraphs 1 and 2.52

After more than 11 years, this solution seems satisfactory, even if it applies only in the context of the Cotonou Agreement as amended in 2005, since the Council itself can even decide on the suspension of the operation of the whole mixed agreement, if the conditions outlined above are met, without the need for a second decision to be reached by the Representatives of the Governments of the 52 See Council Decision 2008/373/EC of 28 April 2008 concerning the conclusion of the Agreement amending the Partnership 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, signed in Cotonou on 23 June 2000, [2008] OJ L/129/44.

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Mixity in Practice Member States, meeting within the Council, on that part of the agreement which falls within the exclusive competence of the Member States. The established procedure contains a review mechanism, ensures sufficient transparency and gradualism, and properly takes into account the relevant prerogatives of the European Commission as well as of the European Parliament53. It may well constitute a model to be followed in the future in terms of other mixed agreements too, in particular if the need for such procedural rules is justified. IV.

CONCLUSIONS

Four main points emerge from the analysis in this chapter. First, pre-Lisbon three negotiating models have been followed in practice: a) the Commission is the only negotiator for the whole mixed agreement, in consultation with the appointed Council Working Party and within the framework of the approved negotiating directives; b) the Commission and/or the Presidency, assisted by the SG/HR for CFSP, together or separately, depending on the subject matter, and of course in consultation with the appointed Council Working Party, etc; and lastly c) the Commission with the informal assistance of the General Secretariat of the Council in relation to the so-called political (CFSP) clauses, again in consultation with the appointed Council Working Party, etc. In practice the last option has become the most favoured arrangement. In my view, it should be evident, however, that the negotiating modalities—whichever of the above-mentioned three is finally chosen by the Council—should respect the provisions of new Article 40(1) TEU that replaces the old Article 47 TEU which provided that ‘nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them’.54 Secondly, I agree with those who think that the relevance and the utility of mixed agreements will decrease in the future. It is a fact that mixity is losing its raison d’être as a result of changes in EU primary law and of the most recent developments in treaty-making legal practice. Moreover, after the entry into force of the Treaty of Lisbon perhaps even the term ‘inter-pillar mixity’ should be replaced by ‘inter-sector mixity’ with ‘double base juridique’, as Judge Timmermans suggests.55 Nevertheless, I also see the point made by those who are of the view (like Marc Maresceau in this book) that we cannot completely bury 53 See new Art 218(9) TFEU on the new role of the European Parliament; and still chapter thirteen by Ricardo Passos in this volume. 54 It should be noted that the second paragraph of new Article 40 TEU foresees that, similarly, the CFSP should not be affected by the EU’s exercise of its competence stipulated in Articles 3 to 6 TFEU. See on this point, Chapter thirteen by Passos, and chapter eighteen by Dashwood in this volume. 55 See chapter one by Christiaan Timmermans in this volume.

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Jeno″ Czuczai mixity—it will remain with us for a long time yet, albeit with a limited scope of application in practice. As I have attempted to prove in my contribution, however, reducing the practical significance of mixity is an unavoidable necessity because of the many problems raised and caused in practice by the considerable delays in the ratification process of mixed agreements by all EU Member States. Thirdly, I confess that I remain optimistic that in the future much more attention will be given to the so-called ‘nouvelle mixité avec double base juridique’, as the example in relation to the expansion of the Schengen acquis over the Swiss Federation clearly demonstrates it in practice. In my view this technique is a realistic and possible legal method to reduce the unnecessary frequency of participation of Member States in mixed agreements, while preserving at the same time the legal clarity, for instance, of how properly to address and define, for example, the position of the CFSP-based political clauses in mixity. Fourthly, Christiaan Timmermans, in a previous contribution,56 made reference to Paul Henry Spaak’s farewell speech to the Parliamentary Assembly of the Council of Europe, where he referred to the endless debates between federalists and intergovernmentalists, and said: ‘J’ai été étonné par la somme des talents dépensés dans cette Assemblée pour expliquer pourquoi il ne fallait pas faire quelque chose’.57 Returning to this quotation, Judge Timmermans said: I am inclined to suggest that we stop sterile debates on the nature of competences. Let us try to get out of the false opposition between exclusive Community competences and exclusive national competences, with nothing in between. The questions should be: whether Community competence exists and what are the advantages to exercise it? If these advantages are obvious, Member States should act through the Community. That is why the Community is there.58

Even after more than a decade, I agree with this position, except that the reference to ‘EC’ should be replaced with ‘EU’ after the entry into force of the Treaty of Lisbon, and by arguing that Member States should act, in terms of Union external action, through the EU as such; that is exactly why they created it. We shall have a ‘Union negotiator’ and ‘Union agreements’ (Article 218 TFEU). At the same time, I do hope that Spaak’s concern will be proved wrong and that Europe’s talents will be relied upon in the context of the innovations set out in the Lisbon Treaty, such as the post of EU High Representative.59

56 See C Timmermans,’Organising joint participation of EC and Member States’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) 239. 57 Ibid, at 240. ‘I have been surprised by the amount of talent displayed in this assembly in order to explain why we should not have done something’ (translated into English by the author). 58 Ibid, at 247. 59 See J-C Piris, The Constitution for Europe—A Legal Analysis (Cambridge, Cambridge University Press, 2006) 108 et seq. See also in this respect A Dashwood, ‘Article 47 TEU and the relationship between first and second pillar competences’ in A Dashwood and M Maresceau (eds), Law and Practice of EU External Relations—Salient Features of a Changing Landscape (Cambridge, Cambridge University Press, 2008) point 3.6 (Epilogue after the ECOWAS judgment), 103.

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12 Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States FRANK HOFFMEISTER*

I.

INTRODUCTION

W

HEN THE THEN Director-General of the Commission Legal Service, Claus-Dieter Ehlermann, introduced the topic of mixed agreements at the conference on mixity 25 years ago, he noted that recourse to such agreements had become more and more frequent and presented ‘a list of problems’.1 Today, neither the practice nor the problems of mixed agreements have disappeared. On the contrary, new practice has emerged producing equally new legal challenges.2 For the practitioner, such challenges appear at times as a curse, causing headaches and desperation, in particular if complex legal issues need to be explained, under pressure of time, to other EU actors or third parties. For the academic, though, mixed agreements are as attractive as ever. They present an interesting field where complicated issues of international and European law come to a crossroads, inspiring original legal thinking in unchartered waters. Against that underlying tension, this chapter is structured as follows. Section II. briefly reviews the evolution of mixity in the period under consideration, with

*

The views expressed are personal. C D Ehlermann, ‘Mixed Agreements, A List of Problems’, in D O’Keeffe and H Schermers (eds), Mixed Agreements (Deventer, Kluwer, 1983) 1 at 2. 2 See especially J Heliskosi, Mixed Agreements as Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer, 2001); R Leal-Arcas, ‘The European Community and Mixed Agreements’ (2001) 6 European Foreign Affairs Review 483; and E Neframi, Les accords mixtes de la Communauté européenne, aspects communautaires et internationaux (Paris, Bruylant, 2007). 1

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Frank Hoffmeister an emphasis on the last 10 years.3 Having identified the new challenges of that period, this presentation will pay specific attention to the European Commission’s distinct roles as negotiator, coordinator, representative and guardian of the Treaty. Accordingly, section III. will concentrate on Union practice on treatymaking, and on the application and enforcement of mixed agreements. A conclusion on the question whether mixed agreements should be regarded more as a curse or a blessing for European practice will be presented in section IV.

II.

THE EVOLUTION OF MIXITY

A. The legal basis for ‘new mixity’ When ‘mixity’ was discussed in 1983, the interest focused on bilateral agreements concluded by the European Community and its Member States with third States. Indeed, these are the prototypes of mixed agreements, as the first association agreements with Greece in 1961 and Turkey in 1963 respectively were already mixed.4 Despite the possibility of concluding pure Community agreements with provisions relating to those subject matters for which the Community does not have original competence, as long as those remain ancillary to the main Community objectives,5 Member States have felt a deep need to continue playing an important part in joint treaty-making. Since the entry into force of the Maastricht Treaty in 1993, the practice of concluding mixed agreements has evolved even further. From then on, the European Union started to conduct a common foreign security policy (CFSP— second pillar) and tackled international aspects of the cooperation in justice and home affairs (JHA—third pillar). As the Union was later endowed with a treaty power in these fields under then Articles 24 (new Article 37 TEU) and 38 (repealed by the Treaty of Lisbon) of the TEU, and since the Council of the European Union concluded certain types of CFSP or JHA treaties with third States ‘on behalf of the European Union’ as of 2000,6 the question arose thereafter, whether or not to keep the classical approach. In situations where certain areas of a bilateral treaty were not covered by Community competence, one could think of replacing the Member States with the European Union as the co-Contracting Party of the Community. Hence, mixed Community/Union

3 For an excellent account of the situation as of 1998, see A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer, 1998) 125. 4 [1963] OJ L/293/63 (Greece); [1964] OJ L/217/1 (Turkey). 5 Case C-268/94 Portugal v Council [1996] ECR I-6177, para 39. 6 See generally P Koutrakos, EU International Relations Law (Oxford, Hart Publishing, 2006) 406–09.

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Curse or Blessing? Mixed Agreements in Recent Practice agreements could potentially cover all treaty areas, and it would just be a question of political will whether the Member States opted for concluding such a ‘new’ or a ‘classical’ mixed agreement. B. Inter-pillar practice since 2000 Such ideas were indeed floated as early as in the negotiations with the former Yugoslav Republic of Macedonia (FYROM) and Croatia on the respective Stabilisation and Association Agreements (SAAs) in early 2000. However, the Member States did not see a need to depart from the classical approach. In their view, concluding the SAA’s without their own participation would have sent the wrong political signal to downgrade the importance of the SAAs for the accession course of the countries in question. Accordingly, the SAAs with FYROM and Croatia of 2001 were concluded as classical mixed agreements between the Community and its Member States, on the one hand, and the treaty partner from the Western Balkans on the other hand.7 The same is true for the Euro-Med Association Agreement with Algeria, signed in April 2002.8 Shortly thereafter, the negotiations on the Euro-Med Association Agreement with Lebanon were concluded. Like the agreements with the other countries from the region, this Agreement was signed in June 2002 as a classical mixed agreement.9 As a new element, the European Union signed on the same day an additional agreement in the form of an Exchange of Letters concerning cooperation in the fight against terrorism on the basis of then Article 24 TEU (new Article 37 TEU).10 Lebanon henceforth entered into treaty relations with the Community and its Member States on a wide array of subjects, and with the Union with respect to fight against terrorism. Inspired by this precedent, another variant was tested in the negotiations with Iran in 2005. Here, the question emerged whether a trade agreement should be concluded by the Community only, supplemented by a separate political agreement by the Union (with provisions on the fight against terrorism and nonproliferation of weapons of mass destruction). Under this approach, the Member States would not become a Party to either agreement, but nevertheless the entire range of subject matters could be covered with Iran. Given that the pre-accession element was lacking, many Member States were more willing to cede their place to the European Union. However, the strict separation into two agreements had 7 SAA signed on 9 April 2001 with FYROM ([2004] OJ L/84/1); SAA signed on 29 October 2001 with Croatia ([2005] OJ L/26/1). 8 Euro-Med Association Agreement with Algeria, signed on 22 April 2002, [2005] OJ L/265/1. 9 Euro-Med Association Agreement with Lebanon, signed on 17 June 2002, [2006] OJ L/143/1. 10 The Council Decision concluding the agreement on behalf of the European Union is not published. In the minutes thereto, the Council and the Commission stated: ‘Nothing in this exchange of letters can be interpreted as affecting any Community competence in the EC treaty. The legal basis of the present Council decision is without prejudice to any further anti-terrorism clause that may be concluded with third countries.’

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Frank Hoffmeister one significant drawback: what mechanism could be employed to ensure that a possible breach by Iran of the political agreement could be sanctioned by a suspension of the trade agreement? A clause in the Community agreement might be utilised, according to which the fulfilment of the Union agreement would constitute an essential element of the trade agreement, or a political declaration might be used, to be adopted at the time of signature, according to which both agreements would constitute an indissoluble whole. While the creation of a political link under the latter solution seemed possible, the creation of a legal link between the two through a treaty clause raised questions under then Article 47 TEU (new Article 40 TEU). Could the Union influence decisions on suspension under the Community agreement without violating former Article 47 TEU? And could the Council rule on the suspension of the trade agreement by qualified majority upon a proposal from the Commission, even if no unanimity had been reached in the Council to determine a breach of the political agreement by Iran? Whereas the negotiations with that country came to a halt for other reasons, the above-mentioned questions demonstrated how difficult it could be from a legal angle to conclude two separate agreements, while dealing with them as one package from a political angle. Comparable discussions about the appropriate form of contemporary mixed agreements also emerged with respect to the new Framework Agreements on Partnership and Cooperation with certain South-Asian countries.11 This time, in the light of the Iranian example, the Community and its Member States opted for one single text, to be concluded together by the Union and the Community, respectively. A draft text was prepared for initialling in May 2006. However, difficult legal questions arose in this context too. Should there be one or two conclusion decisions? How should the European Parliament be involved? What would be the applicable norms and procedures on the European side to implement the agreement? Would the Union parts of the agreement have a different domestic legal rank from the Community ones? Fortunately, there has not yet been any need to give a definitive legal response to these intriguing questions— the Member States have decided to stick with ‘good old mixity’, believe it or not, because ‘new mixity’ would create far more problems than the ones to which we are used! The only exception to date is the EC/EU–Switzerland Agreement on the participation of Switzerland in the Schengen acquis. The reason for this was the split of the Schengen acquis between the first and third pillar after the Treaty of Amsterdam. Hence, participation of Switzerland in the Schengen area inevitably touched legal acts from both legal orders, with the consequence that both the European Union and the European Community became Switzerland’s treaty

11 As of November 2004, the Community started to negotiate such agreements with Thailand, Indonesia, Singapore, The Philippines, Malaysia and Negara Brunei Darussalam.

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Curse or Blessing? Mixed Agreements in Recent Practice partner. As treaty making in the Union and the Community follows quite different rules, the Council of the European Union adopted two decisions on conclusion: one on behalf of the European Union under former Articles 24 and 38 TEU,12 and one on behalf of the European Community under former Article 300(2) EC (new Article 218 TFEU) after hearing the European Parliament.13 III.

RECENT PRACTICE ON AGREEMENTS CONCLUDED BY THE UNION AND ITS MEMBER STATES

Let us now turn to ‘classical mixity’, where important legal challenges remain in the area of treaty making, application and enforcement.

A. Treaty making 1. The choice of negotiator Under former Article 300(1) EC (new Article 218(3) TFEU), Community agreements are negotiated by the Commission on the basis of negotiation directives issued by the Council. Such directives do not constitute ‘delegated powers’ from the Council to the Commission and should thus not be called ‘mandates’.14 Rather, as the external representative of the Community, the Commission takes into account the prevailing views in the Council in the negotiating phase, so that the agreed text has better chances of being accepted by the Council and the European Parliament in the conclusion phase under former Article 300(2) and (3) EC (new Article 218(6–8) TFEU). Whereas the Treaty provisions are thus clear as regards the Community’s participation in a mixed agreement, there is no corresponding rule for the choice of negotiator of the Member States’ part. In a bilateral context, it has been the consistent practice of the Member States to entrust the Commission with this task as well. Several reasons support this choice: a) a sole negotiator is important to carry forward the strategy and pace of the negotiations; 12 Council Decision 2008/149/JHA of 28 January 2008 on the conclusion, on behalf of the European Union, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss confederation’s association with the implementation, application and development of the Schenge acquis, [2008] OJ L/53/50. 13 Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, [2008] OJ L/53/1. 14 P-J Kuijper, Of ‘Mixity’ and ‘Double-hatting’—EU External Relations Law Explained (Amsterdam, University Press, 2008) 9.

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Frank Hoffmeister b) for the third country there can be no doubt as to the identity of its interlocutor, and this discourages attempts to divide or weaken the European position by turning to individual Member States; c) the sole negotiator is more capable of offering package deals which might involve questions falling under Community and Member States competence; d) the Member States could still exercise control over the Commission in the Special Committee appointed to follow the negotiations under the second sentence of then Article 300(1). If the Commission were thought to be encroaching onto national prerogatives, the negotiating directives could be amended accordingly; e) entrusting the Commission to negotiate the Member States’ part of a bilateral mixed agreement does not pre-empt the national ratification process. The final decision whether or not to conclude the national part of a mixed agreement remains in the hands of the Member State itself. This architecture had to be revisited in view of the potentials of ‘new mixity’. Given that Union agreements under former Article 24 TEU (new Article 37 TEU) are negotiated by the Presidency, assisted by the High Representative and (optionally) the Commission, the question was put on the table whether CFSP clauses in mixed agreements should not be negotiated in the same way. Some arguments were made for that approach. For example, for matters falling under national competence, the Member States enjoy an unfettered discretion as to their choice of negotiator. If such matters concern CFSP matters, they might wish to entrust negotiation to the High Representative, who has gained more experience on issues such as weapons of mass destruction and cooperation with the International Criminal Court. Moreover, granting a negotiation role to the High Representative rather than to the Commission might underline the political weight of the negotiations for the Member States. In the light of these considerations, it is not impossible that certain bilateral mixed agreements would henceforth no longer be negotiated solely by the Commission. However, whether or not a decision of the Member States to appoint a negotiator with two ‘caps’ would strengthen or weaken the European negotiation powers remains to be seen.

2.

Negotiation of multilateral conventions

In the multilateral set-up, the starting point for the negotiation of a mixed agreement is entirely different. Here, representatives of the Member States have been negotiating international conventions for decades on their own. Nowadays, when the subject matter of a new convention triggers Union participation in the negotiations, the question for those representatives is how to comply with the relevant obligations arising from EU law. First, as the Court of Justice held in 254

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Curse or Blessing? Mixed Agreements in Recent Practice Opinion 1/94 with respect to the WTO,15 Union coordination must be organised at the negotiation phase. Secondly, the Commission must be granted a place at the negotiating table under then Article 300(1) EC (Article 218(3) TFEU), unless the Union authorises the Member States to act as its trustees.16 From a Union point of view, the operational consequences for meeting these Treaty obligations are relatively straightforward: the Union and its Member States will hold regular coordination meetings to agree on substance. Coordinated positions falling under Member State competence would then be presented to third countries by the Presidency, whereas EU positions would be presented by the Commission. In areas of shared competence, either the Presidency or the Commission, depending on the thrust of the matter, would present the common position of both the Union and its Member States. This ‘tandem’ should be seated together at the conference and conduct all the negotiations for the Union and its Member States. In practice, however, such arrangements must be compatible with the international rules governing the international conference or the organisation under whose auspices the negotiations are held. In the UN context that may pose a number of major legal obstacles: Can the Commission participate in negotiations although the European Union is not a Member of the United Nations or its Specialised Agencies? If the Commission is allowed to participate on behalf of the EU as an ‘observer’, could it do so on an equal footing with other negotiating partners with respect to the right to speak, to propose amendments and to vote? The answers are yes and no. The lack of formal membership may in principle be overcome by relying on the observer status of the Union to the conference or organisation in question. Recent practice has also been successful in enhancing such observer status and secure full participation rights for the Union in treaty negotiations.17 However, the Commission often faces two remaining limitations. First, as happened, for example, during the negotiations on the International Health Regulations in the World Health Organisation, speaking in the capacity of an ‘observer’ may imply that the Commission is seated far back in the room and hence separated physically from the Presidency.18 Secondly, and more importantly, since an ‘observer’ can never exercise voting rights, the Commission is compelled to rely on the Member States to vote (if necessary) in support of the EU position, rather than casting its own vote with a weight counting for all participating Member States.

15

Opinion 1/94 (WTO) [1994] ECR I-5267, para 108. Opinion 2/91 (ILO) [1993] ECR I-1061, para 5. 17 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 CMLRev 41, 54–56. 18 B Eggers and F Hoffmeister, ‘UN–EU cooperation on public health: the evolving participation of the European Community in the World Health Organization’ in J Wouters, F Hoffmeister, T Ruys (eds), The United Nations and the European Union—An Ever Stronger Partnership (The Hague, TMC Asser Press, 2006) 165. 16

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Frank Hoffmeister 3. Conclusion of mixed agreements The conclusion of a mixed agreement nowadays triggers 28 decisions: a conclusion decision of the Council on behalf of the Union, and 27 national decisions. In contemporary practice, around three years pass between signature and conclusion of a mixed agreement. This fact raises the question as to whether there is a duty on the Union to await all national decisions or whether—on the contrary— the EU can force Member States to ratify within a given deadline. As to the first issue, it is noticeable that in a number of instances the Council did indeed wait for the completion of national procedures before depositing the instrument of ratification on behalf of the Union.19 The legal reasoning behind this may be connected with issues of liability: in order to avoid the Union being held liable for a Convention breach instead of a ‘missing’ Member State for an issue falling within Member State competence, it is prudent to have all national ratifications in place prior to EU ratification. On the other hand, it is hard to identify a legal obligation to that effect.20 If this were the case, the EU could never ratify a multilateral convention if a single Member State decided not to do so for matters falling within its competence. That could frustrate possible majority voting in the Council in favour of concluding a convention on behalf of the Union for matters falling within EU competence. Hence, there are recent cases in which the Union has become a Contracting Party to a multilateral convention even if not all Member States have ratified it (‘incomplete mixity’).21 The corollary is that the Union has only a limited power to require from Member States ‘speedy’ national ratification of a mixed agreement. At the most, it can include clauses on early ratification in the Council decision on EU ratification.22 Only if the Council were to impose such a constraint on the Member States could there be an obligation under secondary EU law on speedy national ratification. In the light of the practical problems involved with the conclusion of mixed agreements, recent practice has come up with an interesting new approach. After

19 The Council concluded the Euro-Med Association Agreements on behalf of the Community only after the last national ratification occurred. See, eg, Council Decision 2005/690 of 18 July 2005 on the conclusion of the Euro-Med Agreement with Algeria 2005, [2005] OJ L/265/1. 20 S Sattler, Gemischte Abkommen und gemischte Mitgliedschaften der EG und ihrer Mitgliedstaaten. Unter besonderer Berücksichtigung der WTO (Berlin, Duncker and Humblot, 2007) 138–40. 21 See, eg, Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on behalf of the European Community, of the UN Convention Against Transnational Organised Crime, [2004] OJ L/161/69. In Recital 4, the Council noted that some Member States are parties to the Convention while the ratification process is under way in other Member States. 22 Council Decision 2006/515/EC of 18 May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity in Cultural Expressions, [2006] OJ L/201/15. In Recital 5, the Council exhorted Member States to ratify by noting: ‘Both the Community and its Member States have competence in the fields covered by the UNESCO Convention. The Community and its Member States should therefore become Contracting Parties to it, so that together they can fulfil the obligations laid down by the UNESCO Convention and exercise the rights invested in them by it, in situations of mixed competence in a coherent manner’ (emphasis added).

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Curse or Blessing? Mixed Agreements in Recent Practice May 2004, an enormous number of bilateral mixed agreements had to be extended to the 10 new Member States through accession protocols. Such accession protocols, which bring the new Member States into a treaty relationship with the non-EU State in question, are in themselves mixed agreements. It is unlikely that a national parliament in an old EU Member State would accord political priority to bringing them into force. In order to overcome the risk of their late ratification, or even lack of ratification, Article 6(2) of the 2003 Act of Accession23 provided for a simplified procedure: the decision to conclude an accession protocol to a mixed agreement is taken by the Council on behalf of the EU and—simultaneously—by the Representatives meeting within the Council on behalf of all the Member States. This procedure was decisive in bringing about the smooth integration of the new Member States as Contracting Parties to bilateral mixed agreements of the Union and the old Member States with a number of non-EU States.

B.

Application

Once mixed agreements are concluded, attention shifts to the modes of proper application. In recent years three issues have kept the Commission particularly busy in this respect, namely provisional application, division of competences, and Union discipline. 1.

Provisional application

Under international law, provisional application of a treaty is possible if the Contracting Parties so agree (Article 25 of the Vienna Convention on the Law of Treaties).24 This instrument is attractive when the entry into force of a treaty may take time due to lengthy ratification procedures. As the then Community was concluding more and more international treaties, it was facing the same constraints at times. However, the original treaty-making provisions of the Treaty (Articles 113, 228, 238 EEC) were silent on the issue. It could therefore be debated whether the Community was barred from agreeing on provisional application of a Community treaty, or whether it could rely on general international law for that purpose. In practice, as of 1976, the Council did resort to provisional application of Community treaties. With the increase of rights of the European Parliament in the conclusion stage by the Treaty of Maastricht 1992, the question arose as to whether the Parliament also needed to be involved in Council decisions on provisional application. Particularly where Parliament had the right to give assent to the final conclusion of a treaty, the 23

[2003] OJ L/236/l. See generally F Montag, Völkerrechtliche Verträge mit vorläufigen Wirkungen (Berlin, Duncker and Humblot, 1986). 24

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Frank Hoffmeister Council consulted the Parliament prior to a decision of provisional application in some cases.25 In other cases, the Council simply informed the Parliament about the fact that a treaty was being provisionally applied by the Community. With the Amsterdam Treaty of 1997, the legal uncertainty about the correct procedure in primary law disappeared. In the then new version of the first subparagraph of Article 300(2) EC, the Council has the right to take a decision on provisional application upon the proposal of the Commission. The Parliament is to be informed subsequently of such a decision under the third subparagraph of Article 300(2) EC. Whereas the possibility of relying on provisional application was thus confirmed for Community treaties, consequential questions nevertheless arose as regards mixed agreements. As the Member States’ part of a mixed agreement could not be covered by a Council decision under the first subparagraph of then Article 300(2) EC, such an agreement could be brought into force provisionally only with a corresponding decision of the Member States. However, under the constitutional tradition of several Member States, such as Austria, Portugal and Poland, a government decision on the provisional application of international treaties is seen as a circumvention of parliamentary rights in certain cases. Would it therefore be possible for these governments to declare the provisional application of a mixed agreement? Recent practice seems to have given an affirmative response. The Energy Charter Treaty operated from 1995–98 on the basis of a decision on provisional application of the Council taken back in 1994 for the Community part,26 and on the basis of national decisions for the Member States’ part. As such decisions are sometimes hard to trace back, a newer approach is to formalise and publish them. A prominent example is the decision of the representatives of the Member States, meeting within the Council, on the provisional application of the air transport agreement between the Community and its Member States, on the hand, and the United States on the other hand.27 While joint provisional application by the Union and its Member States thus enhances the possibility of acting quickly, it nevertheless should not be seen as a magic solution. Rather, it provides an exceedingly weak position in which to

25 See, eg, Council Reg No 500/94 (EC) on the conclusion of the Protocol on the provisional application of the agreement on the creation of a scientific and technological centre, [1994] OJ L/64/1, or the reasoning of the Commission when presenting to the Council the decision for provisional application of the Energy Charter Treaty in 1994 (COM (94) 405 final). 26 Council Decision No 94/998/EC on the provisional application of the Energy Charter Treaty by the European Community, [1994] OJ L/380/1. 27 Decision 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, on the other hand, [2007] OJ L/134/1.

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Curse or Blessing? Mixed Agreements in Recent Practice remain for many years, as it can be terminated by either party without further notice and without giving reasons under Article 25(2) of the Vienna Convention on the Law of Treaties.28

2. Division of competences in multilateral conventions When the Union becomes a Party to a multilateral convention together with its Member States, the question arises as to the division of competence. While it is not necessary from a EU point of view to give a precise answer,29 it is nevertheless a constant demand from third States. They have a legitimate interest in knowing for which issues they need to turn to the Union or its Member States, and against whom to bring a dispute settlement procedure should the case arise. In particular in the context of UN Conventions, to which the Union may become a Contracting Party as a ‘regional economic integration organisation’ (REIO), the EU is thus required to deposit a declaration of competences upon ratification. Such declarations are not easy to agree on within the Union, as they require an analysis of the scope of external EU competence, often on the basis of implied powers according to the ERTA doctrine.30 As the latter case law remains complex despite the subsequent comprehensive summary in the important Opinion 1/03,31 the lawyers of the Member States and the EU institutions involved must find a suitable compromise. That again can lead to a result where a declaration of competence simply refers to the relevant Treaty articles and the principle of implied powers as elaborated by the Court,32 at times complemented by a list of EU legislation in the field covered by the convention.33 There are also exceptional examples where the listed Union competence is connected with specific articles of the convention in question.34

28

Kuijper, above n 14, 12. Ruling 1/78 (Draft Convention of the IAO) [1978] ECR 2151, para 35. 30 Case 22/70 Commission v Council (ERTA) [1971] ECR 263. 31 Opinion 1/03 (Competence of the Community to conclude the new Lugano Convention on the recognition and enforcement of judgments in civil and commercial matters) [2006] ECR I-1045 with a comment by P-J Kuijper, ‘The Opinion of the Lugano Convention and the Implied External Relations Powers of the European Community’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for the External Relations of the European Union (Brussels, Brussels University Press, 2008) 187. 32 See for example the declarations on competences with respect to UNCLOS [1998] OJ L 179/1 or the Codex Alimentarius [2003] OJ L 309/17. 33 See for example the declaration of competence with respect to the World Customs Organisation [2007] L 274/13. 34 See for example the declaration of competence with respect to the UN Convention Against Transnational Organised Crime, [2004] L 261/115. On this issue, see the Ch by Koutrakos in this volume. 29

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Frank Hoffmeister While the drafting of these declarations is sometimes criticised by academics35 and third countries as unduly vague, the chosen technique nevertheless has its merits. First, it illustrates that the identification of EU competence in a given field is not a question of mathematics or a pre-defined catalogue of competences in the Treaty, but a matter for case-by-case analysis. Secondly, it underlines the fact that Union competence in the field covered by the Convention is not static but may evolve over time. In such situations, it may be appropriate to update the declaration (although it has to be admitted that such updates have very rarely been made in practice). Thirdly, even a declaration of competence drafted in general terms may gain importance in interpreting EU law. Hence, the Court has regard to these declarations when considering for which parts of a multilateral convention the Union has exercised competence when concluding it.36 For that reason, the Commission may even be forced at times to bring the matter before the Court when it considers that the Council has not properly reflected the division of competences in the declaration.37 Moreover, under international law, such declarations may constitute a useful tool of interpretation when determining liability under the Convention according to Article 31(2)(b) of the Vienna Convention on the Law of Treaties. 3. Union coordination in situations of mixed membership The third contemporary challenge with respect to the application of mixed agreements is the organisation of Union discipline in treaty bodies or organs of an international organisation. The legal principles surrounding such ‘mixed membership’ are the same as those for mixed agreements.38 Nevertheless, some specific problems, which do not arise in a traditional bilateral context, need to be resolved, in particular regarding EU coordination.39 In order to provide legal certainty, the Council and the Commission may conclude an inter-institutional agreement on the matter. The first reference document of that kind had been developed in connection with commodity agreements, the famous ‘Proba 20’ document of 1981.40 When the then Community acceded to the Food and Agricultural Organisation (FAO) in 1991, the 35 M Björklund, ‘Responsibility in the EC for Mixed Agreements – Should Non-Member Parties Care?’ (2001) 70 Nordic Journal of International Law 379; 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 Law (Oxford, Hart Publishing 2008) 3. 36 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635, paras 96–112. 37 Case C-29/99 Commission v Council [2002] ECR I-11221, paras 84–107. 38 S Sattler, above n 20, 295–97. 39 Questions of Community discipline in bilateral mixed agreements rarely occur and are therefore usually not fixed in writing. An exception is the Internal Agreement between Member States on the implementation of the Cotonou Agreement of 18 September 2000, [2000] OJ L/317/376, as amended [2006] OJ L/247/48. 40 Arrangement between the Council and the Commission concerning the Community and Member States’ participation in international negotiations on raw materials falling within UNCTAD’s Integrated Programme, published in E L M Völker and J Seenbergen, Leading Cases and Materials on

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Curse or Blessing? Mixed Agreements in Recent Practice relevant intra-Community coordination framework was laid down in a specific Code,41 which the Court regarded as a legally binding expression of the duty of mutual cooperation enshrined in then Article 10 EC (replaced, in substance, by Article 4(3) TEU).42 Moreover, in 1998, the Council laid down rules on EU coordination with respect to the International Seabed Authority, when it decided on the accession of the then Community to the International Convention on the Law of the Sea.43 However, despite the fact that the Union and its Member States are nowadays party to a number of multilateral conventions with treaty bodies, only a few more Codes of Conduct have been concluded in the meanwhile. While the Council and Commission were able to agree on a Code for the post-Uruguay Round Negotiations on Services,44 attempts to bring about a similar Code for all WTO matters utterly failed.45 Commission proposals for Codes of Conduct for the International Maritime Organisation (IMO) and the International Civil Aviation Organisation (ICAO) (both organisations to which the Union is not a Party, but which deal with matters that increasingly fall under EU competence) were not formally accepted in the Council in 2005. The only more recent coordination arrangements worth mentioning are the Codes for the Codex Alimentarius Commission (to which the then Community acceded in 2003)46 and for the UNESCO Convention on Cultural Diversity (2007).47 These texts strengthen Union discipline in an important regard when compared to the FAO Code. Whereas point 2.4 of the FAO Code gives Member States a free hand where no common position of the EU and its Member States is reached for matters of shared competence, point 4.4 of the Codex Code provides that in such cases of disagreement Member States can speak and vote only on matters ‘falling clearly within their competence’. In return, the Commission may

the External Relations of the EC (The Hague, Kluwer, 1985) 48. The arrangement has been replaced by a newer text of 2002 (Council Document 7207/02)—Proba 2002. 41 The text of the Code is referred to by the Court in Case C-25/94 Commission v Council (FAO) [1996] ECR I-1469, paras 5–7. 42 Ibid, para 47. 43 Article 2 of Council Decision 98/392/EC of 23 March 1998 and Annex III thereof, [1998] OJ L/179/1. 44 Code of Conduct between the Council, the Member States and the Commission on the Post-Uruguay Round Negotiations on Services, referred to by the Court in Opinion 1/94 (WTO) [1994] ECR I-5267, 5365–66. 45 J Heliskosi, ‘Should there be a new Article on external relations? Opinion 1/94 Duty of Cooperation in the Light of the Constitutive Treaties’ in M Koskenniemi (ed), International Aspects of the European Union (The Hague, Kluwer, 1998) 274. 46 Council Decision 2003/822/EC on the accession of the European Community to the Codex Alimentarius Commission, Annex III, [2003] OJ L/309/14. For an instructive study of how Community coordination in the Codex Alimentarius works in practice, see L Maier, ‘The regulatory state goes global: EU participation in international food standard-setting by the Codex Alimentarius Commission’, . 47 Council Document 5914/07 of 1 February 2007: Code of Conduct between the Council, the Member States and the Commission for the participation of the Community and its Member States in meetings regarding the implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

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Frank Hoffmeister speak and vote ‘on matters falling clearly within Community competence and for which a Community position has been adopted’ (emphasis added). Point 9 of the Cultural Diversity Code is even more strict in this respect: if disagreement continues to prevail on an issue of shared competence, Member States can only intervene as regards matters falling clearly under Member States competence, provided that their interventions are in substance compatible with Community law. The Commission will speak on matters falling clearly within EU competence to the extent necessary to defend the Union acquis. By implication, for areas not clearly attributable to either side, there is a common duty to abstain. As this perspective risks weakening the Union and its Member States together on the international plane, it creates an additional incentive to cooperate internally. In the absence of a Code of Conduct, Union coordination must be organised on the principles derived from former Article 10 EC (replaced by Artice 3(4) TEU). Usually, the Member States and the Commission work very closely together in order to prepare a coordinated European approach to agenda points that may be raised in a treaty body or a conference of the Parties. Coordination meetings are organised in the relevant Council Working Party in Brussels and, as the case may be, on the spot. Speaking arrangements follow the above-mentioned system for the negotiation of multilateral conventions: the Commission speaks for the Union on matters of EU competence, the Presidency presents the coordinated position of the Member States on matters of national competence, and either of them speaks in areas of shared competence by presenting the common position of the Union and its Member States. If a Member State departs from these rules, the Commission can ensure Union discipline by bringing infringement proceedings before the European Court of Justice, as occurred in a case against Greece for having submitted a national position in the IMO on a matter of exclusive EU competence.48 The same is true if the Council insists that a certain decision should be taken by the Member States and the Union together, while the Commission considers that it should be a EU position only; that scenario arose recently as regards the decision within the WTO to admit Vietnam to the organisation as a new member.49

C. Enforcement Lastly, there are a number of interesting developments with respect to the enforcement of mixed agreements. They may be separated into: a) enforcement by the non-EU State at the international level; and b) domestic enforcement. 48

See Case C-45/07 Commission v Greece, judgment of 12 February 2009, nyr. Case C-13/07 Commission v Council, currently pending; see Opinion of AG Kokott delivered 26 March 2009. 49

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Curse or Blessing? Mixed Agreements in Recent Practice 1.

International enforcement

For the treaty partner of the European Union and its Member States it is important to know which of them bears the international responsibility for eventual breaches of the treaty. Echoing the prevailing sentiment of the first Leiden seminar on mixity,50 the European Court of Justice held in its famous EDF judgment that joint liability is the rule, unless the agreement in question derogates from it.51 A strong indicator of separate liability is the existence of a declaration of competence in a multilateral situation. In a bilateral context the same function can be fulfilled by a clause defining the term ‘Party’. For example, in a number of Partnership and Cooperation Agreements with East European and Central Asian countries, the term is defined as follows: Party means either the Community or its Member States or both the Community and its Member States, in accordance with their respective competences.52

While this general definition may not be particularly helpful for non-EU States with limited knowledge of the division of competences in the European Union, it nevertheless suggests that for matters clearly falling within the competence of the Member States, the Union cannot be liable, and vice versa.53 Of course, the Contracting Parties can also agree on a different formula. For example, Article 1(6) of the EC–US Air Transport Agreement54 contains the following definition: Party means either the United States or the European Community and its Member States.

In that scenario, joint international responsibility of the European Union and its Member States will arise for a breach of the Agreement, irrespective of the exact allocation of competence. For the United States that might have the advantage that the identity of the defendant in the event of a dispute will be clear; and it will enable the US to retaliate, if need be, over the entire range of the Agreement. For the European Union and its Member States, the formula underlines their willingness to deal with disputes together. As the word ‘and’ suggests that the joint liability is not severable, it does not allow the United States to single out one specific, possibly smaller and weaker Member State. Rather, the US will always face the combined strength of the Union and the 27 Member States, thereby increasing the counter-weight in such disputes.

50 G Gaja, ‘The European Community’s Rights and Obligations under Mixed Agreements’, in O’Keeffe and Schermers, above n 1, 133, 137; C Tomuschat, ’Liability for Mixed Agreements, ibid, 125, 130. 51 Case C-316/91 Parliament v Council [1994] ECR I-625, para 29. 52 Art 104 of the Partnership and Cooperation Agreement with Russia, [1997] OJ L/327/1. 53 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) 65. 54 Air Transport Agreement between the United States of America, of the one part, and the 27 Member States and the European Community, of the other part [2007] OJ L/134/4.

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Frank Hoffmeister 2.

Domestic enforcement

Recent jurisprudence provides an instructive illustration of the newer trends in the area of the jurisdiction of the European Court of Justice over domestic enforcement measures. Three issues merit some comment here: infringement proceedings by the Commission; preliminary references from national courts; and the enforcement of agreements which should be mixed as they touch upon EU competence, but to which the Union was unable to accede as a result of extraneous difficulties. As to the first of these issues, in the Etang de Berre case, the Court had to decide on the admissibility of an infringement action brought by the Commission against France under the Convention for the Protection of the Mediterranean Sea against Pollution and the Protocol thereto, which were ratified by both the then Community and its Member States.55 The Court stated: (25)

In accordance with case law, mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence (see to that effect, Case 12/86 Demirel [1987] ECR 3719, paragraph 9, and Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 14).

(26)

From this the Court has inferred that, in ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility of the due performance of the agreement (Demirel, cited above, paragraph 13, and Commission v Ireland, cited above, paragraph 15).

(27)

In the present case, the provisions of the Convention and the Protocol without doubt cover a field which falls in large measure within Community competence.

(28)

Environmental protection, which is the subject matter of the Convention and the Protocol, is in very large measure regulated by Community legislation, including with regard to the protection of waters against pollution (see, in particular, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p 40), Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p 1) and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 200 L 327, p 1).

55 See Council Decision 77/585/EEC of 25 July 1977 approving on behalf of the Community the Convention, [1977] OJ L/240/1, and Council Decision 83/101/EEC of 28 February 1983 approving on behalf of the Community the Protocol, [1983] OJ L/67/1.

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Curse or Blessing? Mixed Agreements in Recent Practice (29)

Since the Convention and the Protocol thus create rights and obligations in a field covered in large measure by Community legislation, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.

(30)

The fact that discharges of fresh water and alluvia into the marine environment, which are at issue in the present action, have not yet been the subject of Community legislation is not capable of calling that finding into question.56

On the basis of this reasoning, the Court was able to dismiss the French defence that the point covered by the infringement action actually fell under domestic competence only and was therefore of no concern to the Union and its judicial enforcement mechanism. Apparently, it was important for the Court to analyse the EU powers in view of the fact that the Union had assumed international responsibilities for an entire policy field rather than for specific provisions in the international Convention. If the French thesis had prevailed, the Union might have faced the awkward situation of being held liable internationally without having the means to enforce the agreement internally. In other words, in order to use the powerful Union machinery on domestic enforcement against Member States, the Court has accepted the need to construe the EU part of a mixed agreement broadly. Less clear is the message that the Court has sent out when interpreting mixed agreements upon preliminary references by national courts under former Article 234 EC (new Article 267 TFEU). In Hermès57 and Dior,58 it took a broad view on its jurisdiction over mixed agreements. Confronted with procedural provisions in the TRIPs agreement on the protection of intellectual property rights, the Court affirmed its jurisdiction to interpret those rules of a mixed agreement, because they might apply to applicable EU or national rules at the same time. In other words, a provision in a mixed agreement that has the potential to become relevant for EU practice needs to be interpreted in a uniform manner throughout the Union and its Member States, inter alia because the EU might also be held liable internationally on the basis of that provision.59 Hence a Union interest is sufficient for the Court’s jurisdiction over such questions—and the provision itself does not have to be covered by exclusive EU competence under the ERTA test. However, in Merck Genéricos, where a Portuguese court had asked the Luxembourg judges to interpret Article 33 of the TRIPs agreement on the duration of patent protection, the reasoning went in a different direction.60 While reiterating the Dior principle,61 the Court stressed that EU law would not require the legal

56 57 58 59 60 61

Case C-239/03 Commission v France [2004] ECR I-9325, paras 25–30. Case C- 53/96 Hermès [1998] ECR I-3603, paras 22–33. Joined Cases C-300/98 and C-392/98 Dior and Others [2000] ECR I-11307, para 47. C Hermes, TRIPS im Gemeinschaftsrecht (Berlin, Duncker and Humblot, 2002) 101–02. See chapter six by Panos Koutrakos in this volume. Case C-431/05 Merck Genéricos [2007] ECR I-7001, paras 33–35.

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Frank Hoffmeister system of a Member State to come to an autonomous interpretation of the TRIPs provision in question where there was no Union legislation at all; neither would it preclude the national legal system from taking this course. Given the rudimentary nature of the EU legislation on patent protection, the Court left it to the courts of the Member States to determine the direct effect of Article 33 TRIPs.62 While this judgment seems to protect with caution the Member States’ competence in the area of patent protection in the absence of substantial harmonisation at Union level, it nevertheless leads to an important follow-up question: if the issue under consideration falls entirely into the competence of Member States, why did the Court not reject the preliminary references as inadmissible? Presumably, the Court affirmed its jurisdiction because there is a Union interest not to duck an important request for a delimitation of competence by the referring court. If there is indeed such a Union interest to decide this question at the level of the European Court of Justice, in order to avoid diverging national jurisprudence on competence issues, would there not be an equally important Union interest not to allow divergent interpretations on the substance of the mixed agreement? Can it not be argued that the Court’s role is to prevent a situation where the direct effect of the WTO Agreement is denied at EU level but possibly affirmed at national level for those WTO provisions falling under national competence? It does not strengthen the Union’s credibility on the proper implementation of mixed agreements if such fundamental questions are not tackled in a consistent way by the judiciary in the EU and its Member States. Lastly, important questions of domestic enforcement have arisen in situations which could be described as ‘reverse mixity’. These are situations where the Union ought to be a Party to an international convention due to its competence, but where it was not allowed to accede on the international plane, with the consequence that only the Member States are Contracting Parties to the instrument in question. Is it possible to scrutinise domestic EU legislation falling within the ambit of such an international Convention although the Union has not formally expressed its will to be bound by such rules? In Intertanko63 the Court gave a formal response to this question with respect to the International Convention for the Prevention of Pollution from Ships, signed in London on 2 November 1973, as supplemented by the Protocol of 17 February 1978 (‘MARPOL 73/78’). This Convention was binding on all the Member States but not on the EU due to the fact that it was open for ratification only by States. The Court observed that MARPOL 73/78 had not become part of EU law under former Article 300(7) EC (Article 218 (11) TFEU).64 Moreover, the Union had not substituted itself for the Member States, since it lacked full competence over the entire subject matter of

62

Ibid, paras 36–47. See Case C-308/06 The International Association of Independent Tanker Owners [2008] ECR I-4057, and the commentary from F Dopagne, (2008) 152 Journal de droit européen 241–42. 64 Intertanko, above n 62, para 47. 63

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Curse or Blessing? Mixed Agreements in Recent Practice the Convention.65 Furthermore, the sole intention of the Union legislator— unilaterally to transpose the standards of the MARPOL Convention into EU legislation, as demonstrated by a recital in the preamble of the EU Directive— was not sufficient to transform the Convention into a standard of review of secondary EU legislation.66 The Court added, however, that in view of the customary principle of good faith and of then Article 10 EC (replaced by Article 4(3) TEU), it was incumbent on it to interpret those provisions taking account of MARPOL 73/78.67 Hence, the Court denied any effect of the MARPOL Convention on the validity of domestic EU law, but accorded a certain value to it as an interpretative tool. It thereby probably made the point that formal EU accession to such instruments needs to be achieved when such instruments are to have a stronger impact on domestic enforcement. IV.

CONCLUSION

Mixed agreements remain an important instrument in the European Union’s external relations law. In view of the new challenges identified above, the original question whether they are a curse or blessing for contemporary practice may be answered as follows: On the one hand, recent practice has underlined the strength of this arrangement, particularly in the multilateral field.68 Insofar as the Union succeeds in ensuring coordination through the adoption of formal codes of conduct or informal arrangements, mixed membership of the EU and its Member States in international conventions or organisations is positive. The combined strength of the Commission and the national delegations can add to Europe’s weight internationally. On the other hand, the drawbacks of mixity have recently been felt in a number of other contexts. Experience with pre-Lisbon pure Union agreements under former Article 24 EU created the temptation to appoint two negotiators for mixed agreements. The length of the conclusion stage led to an increased reliance on provisional application which does not provide security. The unclear demarcation of competences may have led to difficult negotiations with third countries which are increasingly interested in clear rules on international responsibility. Moreover, there is an inherent tension between safeguarding the respective competence of the EU and its Member States with a strict corresponding delimitation of the agreement’s provisions, and the Union interest in a harmonised interpretation and enforcement of the agreement as a whole. These shortcomings cannot be overcome easily and are likely to remain with us for 65

Ibid, paras 48–49. Ibid, para 50. 67 Ibid, para. 52. 68 Sattler, above n 20, at 354, calls mixed membership in international organisations a success story of European integration. 66

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Frank Hoffmeister some time to come. Nevertheless, the European Commission seeks to fulfil its respective roles in the different stages of a mixed agreement’s ‘life’, with the overall objective of ensuring the unity of external representation and the effectiveness of the European Union as a trustworthy international actor.

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13 Mixed Agreements from the Perspective of the European Parliament RICARDO PASSOS*

I.

INTRODUCTION

F

OLLOWING THE FIRST reflections on the problems of mixed agreements in the early eighties,1 much has been written on this subject in the legal literature. Yet there has been very little on the role of the European Parliament2 and/or the national parliaments, and, in particular, on the extent to which they should be associated in the negotiating process of international agreements. This lack of parliamentary involvement in the initiation and negotiation of international agreements raises a general question: in an increasingly globalised world, the trend is that important current issues have a dimension going beyond national boundaries. The appropriate answers to these issues need to be found in international cooperation, which is generally pursued through international agreements. When it is evident that these agreements have such a concrete impact on the life of individuals (on issues such as the protection of fundamental political, civil3 and social rights, climate change, environment, trade, financial crisis, safety in transports, quality of goods and services, etc), is it not obvious

* The views expressed do not necessarily correspond to the position of the Legal Service of the European Parliament. 1 Notably on the occasion of the 1982 Colloquium of the Leiden Europa Institute on mixed agreements in December 1982 and in the subsequent publication (D O’Keeffe and H G Schermers (eds), Mixed Agreements (Deventer, Kluwer 1983)). 2 See, however, C Franklin, ‘National Report: Norway’ in FIDE 2006: External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility and Effects of International Law (editor X L Xenopoulos, Nicosia, 2006) 88. See also G Garzón Clariana, ‘La mixité: le droit et les problèmes pratiques’ in J H J Bourgeois et al (eds), La Communauté européenne et les accords mixtes, quelles perspectives? (Bruxelles, Presses Interuniversitaires Européennes, 1997) 15. 3 See, eg, the protection of data in an agreement concluded with the US establishing the Passenger Name Record by air flight companies (Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission [2006] ECR I-4721).

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Ricardo Passos that the institutions directly elected by the citizens should be associated, as closely as possible, with the launching and negotiations of international agreements? For the Union external policy to be legitimate, democratic control by the European Parliament is required. Some contend that the involvement of the European Parliament in shaping the Union’s external policy will bring complexity and will be an obstacle to its efficiency.4 But this debate also took place when the co-decision procedure was introduced in the Treaty of Maastricht, back in November 1993. The legislative procedure became more complex, but a new level of democratic legitimacy was introduced. Maybe Parliament’s involvement will not necessarily make things simpler, but it seems obvious that the search for greater effectiveness cannot justify the absence of proper parliamentary scrutiny and the absence of public debate.5 Formal European Parliament scrutiny is indeed indispensable for reaching higher levels of legitimacy and accountability.6 Another question is the scope of Parliament’s scrutiny. It is indeed true that Parliament’s scrutiny is not necessary for each and every EU agreement. The Treaty of Lisbon establishes criteria in that respect.7 It is then up to the Parliament, through its internal organisation, to give its input on agreements of political significance, including mixed agreements. Despite insufficient information on the negotiation of international agreements, the European Parliament has developed a practice to adopt resolutions containing recommendations to the Council and the Commission, with concrete proposals to be inserted in the international agreements on which it will be consulted subsequently on the basis of the assent procedure. With the Treaty of Lisbon, the involvement of the European Parliament changes dramatically, because what was before the exception—that is to say, the assent procedure—becomes the rule.8 Indeed, all agreements relating to areas covered by the ordinary legislative

4 This was clear during the discussions in the Leiden–Bristol Conference of 9 May 2008. It was even said by one of the participants in the Conference that Parliament’s participation in trade agreements through the consent procedure is catastrophic! Yet this opinion does not seem to be shared by those responsible in this field. For example, Mr Mandelson said several times to the Committee on International Trade (INTA) during 2007 and 2008 that a legitimate trade policy needs the Parliament’s support. See also J-F Brakeland, ‘Politique commerciale commune, coopération avec les pays tiers et aide humanitaire’, in G Amato, H Bribosia and B De Witte (eds), Genesis and Destiny of the European Constitution (Bruxelles, Bruylant, 2007) 866. 5 P Eeckhout, External Relations of the European Union (Oxford, Oxford University Press, 2004) 188. 6 As J Weiler says, ’the key factor in many scrutiny systems is a parliament’s ability to influence and control its government’s positions on international issues and thereby hold it accountable’ (as quoted by Franklin, above n 2, at 189). 7 Mainly agreements covering fields to which the ordinary legislative procedure applies, but also association agreements or agreements with important budgetary implications or establishing a specific institutional framework (see Art 218(6)(a) TFEU). 8 The European Parliament has come a long way. In the original Treaty of Rome, Art 228 EEC did not mention the European Parliament at all in the conclusion of international agreements by the Community. With the Treaty of Nice, the European Parliament was, as a rule, consulted (with the exception of trade agreements—Art 133(3) EC). The assent procedure was applicable in only four instances (association agreements and three specific cases mentioned in Art 300(3) EC, second

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Mixed Agreements from Perspective of European Parliament procedure are to be concluded by the Council after the ’consent’ of the European Parliament. Since this implies that the European Parliament will be entitled to reject any international agreement before it is concluded, the Parliament’s role in the actual shaping of the international agreements will be real as was demonstrated with the interim agreement between the EU and the USA on SWIFT (see below, Conclusions). This will happen with mixed agreements too, because the Parliament is consulted on the agreements as a whole, and its refusal to give consent implies that the agreements (mixed or not) will not be concluded by the Council. The disadvantages of mixity have already been mentioned: the price of mixity is uncertainty9; and while mixity may be inevitable in some areas, it is also true that it often makes life more difficult for everybody involved.10 In practice, the effect of mixity is that an agreement, which could be concluded by qualified majority voting, needs unanimity, since it must be ratified by all the Member States. Moreover, with 27 Member States, the delays involved for national ratifications are long, usually three years. Whenever legally feasible, the possibility should be considered of pure Union rather than mixed agreements in areas of concurrent competences. But it remains true that the vast majority of agreements concluded by the Union will be mixed, and thus it is necessary to reflect on ways and means to minimise the political and legal difficulties.11 subparagraph), whereas, for agreements concluded on the basis of the CFSP or JHA (Arts 24 and/or 38 TEU), Parliament was not even consulted. There was clearly a democratic deficit with regard to agreements based on Arts 24/38 TEU, and some considered that ’from a democracy perspective this is deplorable and unsustainable’ (Eeckhout, above n 5, 188). It is indeed true that some of these agreements (eg extradition and mutual legal assistance in EU–US relations) have a considerable impact on citizens and should thus require parliamentary scrutiny. 9 See D O’Keeffe and H G Schermers, ‘Introduction’ in O’Keeffe and Schermers, above n 1, ix, x. 10 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) 219. See also chapter seventeen by Peter Olson in this volume. 11 For a full list of mixed agreements in force, see E Neframi, Les accords mixtes de la Communauté européenne : aspects communautaires et internationaux, Annexe II (Bruxelles, Bruylant, 2007). One way is the conclusion of interim agreements (containing only the exclusive Community competence) while the process of ratification of the mixed agreement continues (J-V Louis and M Dony, Commentaire Megret Vol 12: Relations extérieures (Bruxelles, Editions de l’Université Libre de Bruxelles, 2005) 186; see also examples of interim agreements in FIDE 2006, national report from Croatia, p 47). This practice is well established and does not seem to be questioned, given the long delay for ratification by all the Member States: see, as examples, the Council Decision of 29 June 1998 on the conclusion of an Interim Agreement on trade and trade-related matters between the European Community, of the one part, and the United Mexican States, of the other part [1998] OJ L/226/24; Council Decision of 13 October 1998 on the conclusion of an Interim Agreement on trade and trade-related matters between the European Community, the ECSC and EAEC, of the one part, and the Republic of Azerbaijan, of the other part, [1998] OJ L/285/1; Council Decision of 28 January 2002 on the conclusion of an Interim Agreement on trade and trade-related matters between the European Community, of the one part, and the Republic of Croatia, of the other part, [2002] OJ L/40/9. In some cases, the Community applies the agreements provisionally (eg Council Decision of 15 July 2008 on the signature and provisional application of the EPA between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part, [2008] OJ L/289/1). However, in terms of legal certainty, the practice of provisional application is not a good solution, because it can be terminated without giving reasons, in accordance with Art 25(2) of the Vienna Convention on the Law of the Treaties: see P-J Kuijper, Of ’Mixity’ and ’Double-Hatting’ (Amsterdam, Vossiuspers UvA, 2008) 12.

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Ricardo Passos In the context of mixed agreements, one can consider these difficulties at two different levels: at the level of the relations between the Union with third States or international organisations, but also at the level of the relations between the Union institutions themselves. This latter aspect, in particular the effects of mixity in the relations between the European Parliament and the Commission, deserves special attention. The role of the European Parliament in the negotiation of mixed agreements will be considered under the provisions of the Treaty of Nice, as well as under those of the Treaty of Lisbon. II. THE STATE OF PLAY UNDER THE TREATY OF NICE: AN INSUFFICIENT INVOLVEMENT BY THE PARLIAMENT DURING NEGOTIATIONS BUT A TREND TO SET PRECONDITIONS

A. No specific provision in the Treaties: Article 300 EC as the general rule Article 133(6) EC, second sentence, acknowledges explicitly the existence of mixed agreements, and holds that in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.

The fact that such an agreement is not a pure Community–third country agreement but a mixed agreement, does not change the internal procedure between the institutions for the different stages of negotiation and the conclusion of the agreement within the Community.12 There is no specific provision in the pre-Lisbon Treaty on how to negotiate a mixed agreement, nor on the coordination between the EU institutions and the Member States. Thus, it is the general rule of former Article 300 EC that applies. According to this provision, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the negotiations. The Commission conducts the negotiations in accordance with the mandate adopted by the Council. In general, such a mandate contains the directives for the negotiation, which are sometimes detailed and sometimes less so. The Council’s directives are not addressed to the Member States but to the Commission. These directives are confidential otherwise the other Contracting Party would have knowledge of the Commission’s powers and limitations, and this would not secure its necessary margin of negotiation. It is true that theoretically it would be possible to divide the negotiation of a mixed agreement into two parts, ie the then Community part and the Member 12 C D Ehlermann, ‘Mixed Agreements—A List of Problems’ in O’Keeffe and Schermers, Mixed above n 1, 3 at 16. See also Louis and Dony, above n 11, 180.

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Mixed Agreements from Perspective of European Parliament States part, with possibly different negotiators for each part,13 but in practice this distinction is difficult to make and the mixed agreements are generally negotiated under the then ’Community method’, albeit with a greater role for Member States’ representatives.14 During the negotiations, the Council is regularly informed by the Commission on progress made through a Working Party dealing with the third country in question (or region) in the Council, and, where applicable, the then Article 133 Committee (for the trade parts of the negotiations) or the Committee on Civil Law Matters (for judicial cooperation in civil matters). Where the negotiations relate to Member States’ competences, their representatives are entitled to attend the negotiations. As a matter of fact, the adoption of a common position to be presented in the international negotiations of mixed agreements is determined on a case-by-case basis.15 Article 300 EC did not foresee any role for the European Parliament in either the decision to launch an international negotiation, or the directives issued to the Commission, or the supervision of the latter’s conduct of the negotiations. This does not mean that the institutions cannot implement this provision so that the Parliament is informed about and associated with the negotiating process, provided that there is no incompatibility with Article 300 EC. In legal terms, Parliament is consulted by the Council, following the signature of the agreement by the Council. At that time, the negotiation is over (it ends in principle with the initialling of the agreement by the Commission). However, Parliament’s main interest is to be informed by the Commission on the decision to open negotiations, on the content of the negotiating directives and on the negotiations. All this takes place before the signature of the agreement by the Council. B. The Framework Agreement on Relations between the European Parliament and the Commission Taking into account the insufficient information available to it on international agreements, the Parliament had already decided in the early 1960s to be involved in the discussions preceding the opening of negotiations for any association agreement. In 1964 the Council, by a letter from Council President Luns, agreed to inform the Parliament on the negotiations concerning the association agreements. In 1973 the Council (by a letter from President Westerterp) extended the so-called ’Luns procedure’ to commercial agreements. In the Stuttgart ’Solemn 13 The Council may also authorise both the Commission and the Presidency of the Council to conduct the negotiations, without specifying whether a particular negotiating area falls within the Community or the Member States competence. This was the case in the negotiation of the Hague Convention on the Choice of Court Agreements, referred in J-P Hix, ‘Mixed Agreements in the Field of Judicial Cooperation in Civil Matters’ in B Martenczuk and S van Thiel (eds), Justice, Liberty, Security: New Challenges for EU External Relations (Brusssels, Brussels University Press, 2008) 218. 14 Eeckhout, above n 5, 216. 15 P Koutrakos, EU International Relations Law of the European Union (Oxford, Hart Publishing, 2006) 164.

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Ricardo Passos Declaration on European Union’ of 1981, the European Council agreed that the European Parliament should be formally consulted on all ’significant’ international agreements before their conclusion. The Luns-Westerterp procedures were also extended to cover all important agreements.16 Against this background, in 1990 the European Parliament and the Commission concluded a code of conduct (which was revised in 1995) in order to establish forms of cooperation and improve the flow of documents. Following the crisis with the Santer Commission in 1999, and the negotiations and hearings with R Prodi in the same year, the two institutions agreed in July 2000 to replace the existing code of conduct with a Framework Agreement, with a view to extending constructive dialogue and political cooperation and to improving the flow of information.17 This Framework Agreement was modified in 2005.18 1.

The nature and contents of the Framework Agreement

This Framework Agreement (hereafter ’FA’) may be considered, on the basis of the case law of the Court of Justice,19 as an inter-institutional agreement establishing obligations for the two institutions given their intent to be bound by the agreement and its content (in particular point 19, referred to below). The Parliament and the Commission are thus under a legal obligation to respect the undertakings established in the FA, provided that these do not alter or supplement the Treaty.20 The provisions of the FA foresee the information and involvement of the Parliament during the negotiations of an international agreement, 16 R Corbett, F Jacobs and M Shackleton, The European Parliament, 7th ed (London, John Harper Publishing,2007) 233–35; Koutrakos, above n 15, 147. 17 European Parliament/Commission Framework Agreement, [2001] OJ C/121/122. 18 Framework Agreement on relations between the European Parliament and the Commission, [2006] OJ C/ 117E/125. This instrument is generally updated when the Commission is appointed. The last version was adopted on 26 May 2005 (see Annex XIV to the Rules of Procedure of the European Parliament, July 2009,165). 19 The Court has acknowledged that an arrangement between the Commission and Council concerning preparation for UN Food and Agriculture Organisation (FAO) meetings may create legal obligations (Judgement of 19 March 1996, C-25/94 Commission v Council (FAO) [1996] ECR I-1469, paras 49–50). In that judgment, the Court refers to two criteria which make the provisions of an arrangement between institutions legally binding: (i) that the agreement represents the fulfilment of the duty of loyal cooperation; and (ii) that ’the two institutions intended to enter into a binding commitment towards each other’. The Court annulled the decision of the Council because ’the Council acted in breach of the Arrangement which it was required to observe’ See also, in this regard, K Lenaerts and P Van Nuffel, Constitutional Law of the European Union, 2nd ed (London, Sweet & Maxwell, 2005) 757; J P Jacqué, Droit Institutionnel de l’Union Européenne, 3rd ed (Paris, Dalloz-Sirey, 2004) 534–35; R Bieber, ‘The settlement of institutional conflicts on the basis of Article 4 of the EEC Treaty’ (1984) 21 CMLRev 521. 20 This is explicitly mentioned in the Declaration on Art 10 of the Treaty establishing the European Community which was attached to the Treaty of Nice, and according to which: ’In relations between those institutions, when it proves necessary, in the context of that duty of sincere cooperation, to facilitate the application of the provisions of the Treaty establishing the European Community, the European Parliament, the Council and the Commission may conclude inter-institutional agreements. Such agreements may not amend or supplement the provisions of the Treaty and may be concluded only with the agreement of these three institutions.’

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Mixed Agreements from Perspective of European Parliament but they do not alter or supplement former Article 300 EC; they merely aim at securing democratic control of the Commission and monitor how the latter exercises its power of negotiation, with the ultimate goal of facilitating Parliament’s position on the agreement itself (simple consultation or assent).21 Point 19 of the FA provides that: In connection with international agreements, including trade agreements, the Commission shall provide early and clear information to Parliament both during the phase of preparation of the agreement and during the conduct and conclusion of international negotiations. This information covers the draft negotiation directives, the adopted negotiating directives, the subsequent conduct of negotiations and the conclusion of the negotiations. . . . This information shall be provided through the relevant parliamentary committees and, where appropriate, at a plenary sitting.

Parliament undertakes, for its part, to establish appropriate procedures and safeguards as regards confidentiality in accordance with the provisions of Annex I. It is indeed very important that the flow of confidential information to the Parliament be organised in a way that this information is not made public, otherwise the very success of the negotiations would be at risk. 2.

The incomplete application of the Framework Agreement

Point 19 of the FA applies to all agreements, including mixed agreements. Indeed, Parliament is consulted on the whole agreement and not only on parts of it22. Rule 90 of the Parliament’s Rules of Procedure provides that when it is intended to open negotiations on the conclusion of an international agreement, the committee responsible shall ensure that Parliament is fully informed by the Commission about its recommendations for a negotiating mandate, if necessary on a confidential basis (paragraph 1). Throughout the negotiations, the Commission and the Council shall inform the committee responsible regularly and 21 The Council reacted negatively as regards this FA, and issued a statement saying that: ’The Council stresses that the undertakings entered into by these institutions cannot be enforced against it in any circumstances. It reserves its rights and in particular the right to take any measure appropriate should the application of the provisions of the framework agreement impinge upon the Treaties’ allocation of powers to the institutions or upon the institutional equilibrium they create ([2005] OJ C/161/1). It is not immediately apparent why the arrangements between the Commission and the Parliament have provoked such a strong reaction from the Council (Koutrakos, above n 15, 149). 22 A new Framework Agreement with the Commission is currently under negotiation. On 9th Feburary 2010 the Parliament adopted a resolution calling for the following point to be included in the revised FA: “(h) a commitment by the Commission for reinforced association with Parliament through the provision of immediate and full information to Parliament at every stage of negotiations on international agreements (including the definition of negotiation directives), in particular on trade matters and other negotiations involving the consent procedure, in such a way as to give full effect to Article 218 of the TFEU, while respecting each institution’s role and complying in full with new procedure and rules for the safeguarding of the necessary confidentiality’ (P7_TA-PROV(2010) 0009.

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Ricardo Passos thoroughly of the progress in the negotiations, also if necessary on a confidential basis (paragraph 4). At any stage of the negotiations Parliament may, on the basis of a report from the committee responsible, adopt recommendations and require that these be taken into account before the conclusion of the international agreement under consideration (paragraph 5). Even if Point 19 of the FA is clearly drafted, with a few exceptions the responsible parliamentary committees are not sufficiently informed about the negotiating directives and the negotiations. The draft negotiating directives are generally not sent to the responsible committees. In practice, the level of information of Parliament depends very much on the committees concerned. For example, the Committee on International Trade (INTA), the Committee on Fisheries (PECH) and the Committee on Development (DEVE) have managed to organise a procedure whereby the Commissioners (or in their absence the Director General or a Director) provide detailed information about the negotiating directives and the evolution of the ongoing negotiations. This information may be sent to the chairman of the committee responsible, and is subsequently presented orally in a meeting held in camera.23 Most of the committees, however, are not sufficiently informed by the Commission. In some cases, there is even an explicit refusal, as typified by the new Partnership and Cooperation Agreement (PCA) currently under negotiation with Russia.24 Hence, on 29 January 2008, during a meeting of the Committee on Foreign Affairs (AFET), Commissioner Ferrero-Waldner refused to provide information, notably on the ground that it was a mixed agreement. She subsequently asked the relevant Director to appear before the committee in camera. On 2 April 2009, the Parliament adopted a resolution on the new EU–Russia agreement and explicitly asked the Council and the Commission to keep Parliament and its Committee on Foreign Affairs

23 This is the procedure agreed between INTA and Commissioner Mandelson. By an exchange of letters of May 2007, Mr Mandelson agreed to send systematically to INTA all documents transmitted to the 133 Committee, and more generally he accepted to provide early and clear information on international trade agreements when the Parliament so requests. Where possible and appropriate this will be done in writing, but on other occasions it may be appropriate to provide information orally. Mr Mandelson, or his representative, used to come regularly to INTA to inform on the negotiation of ongoing trade agreements. Subsequently, Baroness Ashton, then Trade Commissioner, accepted the same commitment when she undertook her functions in October 2008. Similarly, on the basis of a gentlemen’s agreement with PECH, Mr Borg (or his representative) appeared regularly before this committee, meeting in camera, in order to provide information on the negotiation of fisheries agreements. 24 Council and Commission Decision of 30 October 1997 on the conclusion of the Partnership and Cooperation Agreement (PCA) between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, 97/800/ECSC, EC, Euratom [1997] OJ L/327/1. Two protocols were subsequently added to this agreement, following the enlargement of the EU with 10 new Member States in 2004 ([2006] OJ L/185/21), and with the accession of Bulgaria and Romania in 2007 ([2007] OJ L/200/44). In the meantime, the establishment of a new PCA has been deemed necessary as both the EU and Russia have experienced significant changes since the creation of the PCA in 1997.

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Mixed Agreements from Perspective of European Parliament regularly and fully informed of the progress of the negotiations and reminds them that will need Parliament’s approval.25 By contrast, detailed information on ongoing negotiations regarding the Economic Partnership Agreements (EPAs) based on the Cotonou Agreement, has been provided to INTA and to DEVE committees. The Committee on Fisheries is also informed about the negotiations of all the fisheries agreements, including on problems encountered with their implementation.26 The fact that the agreements are mixed did not prevent the Commission from providing the information requested, when the will to do so exists, but the information on Free Trade Agreements has been transmitted to the Parliament more readily than information concerning PCAs.27 It is not certain that this has to do with the fact that the latter are mixed agreements.

C. Recent trend to set preconditions when the assent procedure is required As mentioned before, the FA already provides that the information transmitted by the Commission relating to international agreements should cover the ’draft’ negotiating directives. However, the Commissioners generally do not send these ’draft’ negotiating directives to the Chairs of the responsible committees, even under a confidential procedure. The insufficiency of information transmitted to the Parliament is the cause of considerable frustration. Despite being generally deprived of sufficient information, and perhaps for that reason, in the context of the assent procedure and before being consulted, the Parliament tends to submit its political requests to the Council, the Commission and (in the case of mixed agreements) to the Member States, with a view to seeking their incorporation in the final texts of the agreements. They are, of course, not presented as ’conditions’ or ’preconditions’ but rather as ’recommendations’. Sometimes, these requests are made even before the negotiating mandate is adopted by the Council. For example, on 15 March 2007, the Parliament adopted two recommendations to the Council on the negotiating mandate for an association agreement with countries of Central America28 and for an association agreement with the Andean Community and its member countries29 (both mixed agreements, which include political dialogue, cooperation programmes and trade arrangements). In 25

Texts adopted, PA_TA(2009)0251. For instance the Fisheries Agreement with Mauritania and the temporary suspension of the financial counterpart, following a change of government in the summer of 2008. 27 The INTA, DEVE and the Sub-committee on Human Rights have been comprehensively informed in March 2009 by the Commission and the Presidency of the Council on the human rights situation in Turkmenistan, in order to evaluate Parliament’s opinion on the adoption of the interim agreement with this country. 28 P6_TA(2007)0079. 29 P6_TA(2007)0080. 26

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Ricardo Passos the first resolution, the Parliament submitted 37 recommendations to the Council, asking the latter to specify in the mandate that the agreement would also include commitments on consolidating democracy and the rule of law, and full respect for human, civil and political rights, social cohesion, sustainable human development, and economic and social rights. Some of the recommendations are very detailed and concrete, and focus on sectors such as corruption, drug trafficking, civil society support for medium and small businesses, tourism and fisheries. In the second resolution, the Parliament acted in a similar manner. Its strategy seems to be as concrete as possible so that its influence is real in the shaping of the agreement, and so that its final evaluation will be made on this basis when it will decide on the assent. In other cases, the Parliament adopted resolutions after the mandate had been adopted by the Council but at an early stage in the negotiations. This was the case, for example, as regards the Parliament’s resolution of 13 December 200730 on trade and economic relations with Korea, or the resolution of 8 May 2008 on trade and economic relations with the Association of South East Asian Nations (ASEAN).31 In the former resolution, the Parliament called for any trade agreement with Korea to incorporate binding social and environmental clauses. This was a general request with regard to the new Free Trade Agreements under negotiation (Korea, India, ASEAN). Another example is the Parliament’s resolution of 2 April 2009 with recommendations to the Council and the Commission on the new EU–Russia agreement. Among the numerous recommendations, the Parliament insists on a broad, wide-ranging and legally binding agreement based on a shared commitment to human rights, covering the whole range of cooperation between the parties and representing a step up from the current PCA, both in terms of the depth of the commitments and the subjects covered …

The Parliament also noted that the regular six-monthly EU–Russia human rights consultations had failed, and insisted on a ’thorough overhaul of EU–Russia human rights consultations, including the creation of a formal role for independent NGOs from Russia and the EU’.32 The Parliament has also been active in, and strongly aired its position with regard to, the negotiations regarding the Economic Partnership Agreements (EPAs) with the African, Caribbean and Pacific (ACP) partners. The Cotonou Agreement foresaw trade arrangements being concluded with the ACP partners by the end of 2007,33 which arrangements would replace a preferences regime under a WTO waiver which expired on 1 January 2008. The negotiations on 30

PA_TA(2007)0629. PA_TA(2008)0195. PA_TA(2009)0215, para 1(a). See also above n 23. 33 Partnership 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, [2003] OJ L/65/27. 31 32

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Mixed Agreements from Perspective of European Parliament agreements, which would cover among other sectors development, trade in goods and services, started in 2002, but it became evident that the conclusion of comprehensive agreements with all the regions would not be possible by the end of 2007.34 It was agreed35 to conclude negotiations for a comprehensive agreement with the Caribbean Forum of ACP States (CARIFORUM) and interim agreements on trade in goods only and development with the other regions. By the end of 2007, the comprehensive EPA with CARIFORUM36 and seven interim EPAs were initialled, of which only the comprehensive EPA and two of the interim EPAs have been signed to date.37 As for the other ACP regions besides CARIFORUM, negotiations continue on comprehensive agreements. The Parliament had already adopted a resolution on 23 May 2007 calling on the Commission to promote social standards and decent work in the EPA trade negotiations. It also called on the Commission to ensure the implementation of Article 50 of the Cotonou Agreement, which contains a specific provision on trade and labour standards.38 On 25 March 2009, the Parliament gave its assent to the full EPA with CARIFORUM39 and to the interim EPA with Côte d’Ivoire40 until a full EPA could be concluded. Before giving its assent, the Parliament received during the oral debate preceding the vote a certain number of commitments from the Council and the Commission.41 The Parliament also took the opportunity to adopt resolutions on all the other interim EPAs, putting forward recommendations to the Commission, which were presented as preconditions for giving assent on the future comprehensive EPAs currently still under negotiation. Thus, in the resolution on the interim EPA with Côte d’Ivoire, the Parliament insists on specific key issues that must be negotiated, such as the inclusion in the comprehensive EPA of provisions on basic standards relating to good governance, transparency and respect for human rights, but also other very concrete issues (for instance rules for the protection of local

34 See Working Document of 2 December 2008 of Mr Glyn Ford in INTA on Interim EPA between the Pacific States and the European Community (PE416.472v01.00). For a comprehensive view on EPAs, see L Bartels, ‘The Trade and Development Policy of the European Union’ in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 166–71. 35 Council Conclusions on the EPAs, 2831st External Relations Council Meeting, 19–20 November 2007. 36 EPA with CARIFORUM, signed on 15 October 2008 (COM/2008/0156 final). 37 Interim EPA with Côte d’Ivoire, signed on 26 November 2008 (COM/2008/0438 final) and Interim EPA with Central Africa, signed on 15 January 2009 (COM/2008/0446). 38 PA_TA(2008)0195. 39 Texts adopted, PA_TA-PROV(2009)0183. 40 Texts adopted, PA_TA-PROV(2009)0184. 41 See debates in CRE 23/03/2009–14. Regarding the EPA with CARIFORUM, the Parliament adopted a resolution with numerous specific requests, and stressed in particular that the principal aim of the agreement is to contribute, through development goals, poverty reduction and respect for fundamental rights, to the achievement of the Millenium Development Goals; it also highlighted the importance of involving the Parliament’s responsible committees (INTA and DEVE) in the establishment of appropriate monitoring of the implementation of the EPA (Texts adopted, P6_TA(2009)0175, paras 5 and 38).

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Ricardo Passos industries, transparency of government procurement, working visas, or the inclusion of a chapter on the protection of biodiversity in the Gulf of Guinea).42 These examples show the commitment of the Parliament to giving its input on the shaping of agreements relating to the ACP countries, and its political will to combine trade issues with development in the present climate of economic crisis. It was also pointed out that the Parliament wishes to participate actively in the monitoring of the agreements. As the Rapporteur said in the debate: [W]e would like to see monitoring between the European Parliament, the Council and the Commission taking place during the phase from interim to full agreement. That is the only way we can understand what you are going to negotiate. Otherwise, you will send us a draft at the end of that period which we will have to agree or disagree with. That is something we do not want to see. We do not want to be part of the negotiating process, but we would like to monitor what you are doing.43

This intervention gives a good idea of how the European Parliament sees its role in the negotiation of agreements by the Commission, including mixed ones like the EPAs.

D. The Parliament may show its concern at the assent procedure In exceptional circumstances, the Parliament may refuse or suspend its assent. Only very serious political reasons justify such an approach. The better-known example concerns the conclusion of the Additional Protocol to the Agreement establishing an association between the EEC and Turkey following the enlargement of the Union in 2004. On 14 June 2005, the Council requested the Parliament’s assent. On 29 July 2005, Turkey signed the Additional Protocol but made a unilateral declaration stating that for Turkey the signature or ratification of the Protocol did not amount to any form of recognition of the Republic of Cyprus referred to in the Protocol. On 28 September 2006, Parliament decided to postpone sine die its consent. The situation remains unchanged at the time of writing. Another example is Parliament’s assent to the conclusion of a Protocol to the Euro-Mediterranean Association Agreement establishing an association between the EC and its Member States, of the one part, and the State of Israel, of the other part, on a Framework Agreement between the EC and Israel on the general principle governing the State of Israel’s participation in Community programmes.44 The responsible Committee (AFET) voted in favour of the assent on 11 November 2008. It was foreseen that Parliament would give its assent on 4 42 Texts adopted, PA_TA-PROV(2009)0176. These two agreements have not yet been concluded at the date of writing. 43 Intervention by Erika Mann, Rapporteur on the interim EPA with Côte d’Ivoire (see debates in CRE 23/03/2009–14). 44 COM(2007)0713.

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Mixed Agreements from Perspective of European Parliament December 2008, but the day before that, the Parliament decided (194 in favour and 173 against) to postpone the assent procedure, because of the situation in Gaza and the lack of respect for human rights. Lastly, on 25 March 2009, the Parliament decided to suspend the procedure concerning the interim agreement between the EC, ECSC and Euratom, and Turkmenistan on trade and trade-related matters,45 because of the human rights situation in that country. The Parliament asked the Council and the Commission to give some concrete (written) commitments on the implementation of the agreement and on its possible suspension on grounds of violation of fundamental rights. It considered that it did not receive sufficient commitments and adjourned its vote again on 2 April 2009. In this case, the Parliament’s consultation on the interim agreement (facultative because it is based on former Article 133 EC, now Article 207 TFEU) was linked with the updating of the PCA with the Turkmenistan, which had been envisaged and on which the Parliament was to be consulted on the basis of the assent procedure. However, on 22 April 2009, the Parliament adopted a resolution on the Interim Trade Agreement (ITA) with Turkmenistan stating that the situation in this country had improved since the change of President, but that substantive progress was still needed in several key areas, such as human rights. It considered that the ITA is a potential lever to the reform process in Turkmenistan, but not a blank cheque and called for the suspension of the ITA if there was evidence that the conditions were not being met. It also called on the Council and the Commision to include a revision clause in the PCA on which the Parliament would need to give its consent.46

III.

THE NEW PERSPECTIVES WITH THE LISBON TREATY

The Treaty of Lisbon entails significant changes concerning mixed agreements. First, it eliminates possible mixed trade agreements, by repealing former Article 133(6) EC. Secondly, it removes the prospect of ’cross-pillar’ mixed agreements in the area of Justice and Home Affairs (JHA), and instead makes it possible to use ’classic’ mixed agreements in certain cases.47 Lastly, it sets out a specific procedure for the negotiation of mixed agreements containing a CFSP part.48 45

COM(1998)0617. PA_TA(2009)0252. 47 According to Declaration No 36, Member States may negotiate and conclude agreements with third countries or international organisations in the areas of judicial cooperation in civil matters, judicial cooperation in criminal matters and police cooperation. This Declaration raises problems of interpretation, because this is an area in which the ERTA doctrine (that is to say, in substance, following this Court case – Judgement of 31 March 1971, C-22/70, Commission/Council, [1971°ECR 263 – Member States have no right to enter into international commitments which might affect or alter the scope of ’internal’ Community rules) should apply normally, and it is not an area where, as in development aid, EU and Member States treaties can easily exist in parallel striving for the same result. On the contrary, a Member State agreement on re-admission of illegal immigrants may totally 46

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Ricardo Passos As was the case with the EC Treaty, the Treaty of Lisbon contains no specific provision on the negotiation of classic mixed agreements. Article 218(2) TFEU provides that ’the Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them’.

A. The Commission should remain, wherever possible, the negotiator of mixed agreements Even if an agreement is mixed, it has always been acknowledged that it can be concluded by the Union alone.49 Yet the potential treaty-making power of the Union is seldom resorted to in order to conclude a pure Union agreement.50 Indeed, most of the 250 mixed agreements in force are examples of ’voluntary mixity’ (voluntary on the side of the Member States, because they want it). There are few cases of ’necessary mixity’ because a part of the agreement falls under the exclusive competence of the Member States.51 What is important is that the Union also speaks with one voice in those parts of the agreement concerning the competence of the Member States. This is well established today in WTO negotiations, following a code of conduct agreed by the Council, the Member States and the Commission. Generally, Member States have accepted that on all matters under discussion in the WTO, the Commission speaks on their behalf. This arrangement concerns matters under both exclusive EU competence and shared competence.52 It stems from the duty of cooperation,53 which the Court has developed in the areas of mixed competence, as a corollary of the ’requirement of unity in the international representation of the Community’.54 This certainly reinforces the Union negotiating position, and this undermine Union efforts to conclude an agreement on re-admission with the third State in question. This Declaration may be seen as ’misguided’ (Kuijper, above n 11, 18). 48 These agreements are generally mentioned by the legal literature as ’cross-pillar mixed agreements’, but since the pillar structure is abandoned in the Treaty of Lisbon, it seems more appropriate to refer to them as ’agreements containing a CFSP part’. 49 R Passos and S Marquardt, ’International Agreements’ in G Amato, H Bribosia and B De Witte (eds), Genesis and Destiny of the European Constitution (Brussels, Bruylant, 2007) 893. 50 Kuijper, above n 11, 11. 51 Ibid. 52 M Kauppi, ‘National Report from Finland’ in Xenopoulos, above n 2, 89; see also Mischo, ‘National Report from Luxembourg’, ibid, 140–41. 53 The Court of Justice has held that a decision authorising the Commission to negotiate an agreement on behalf of the Community requires at the very least a duty of close cooperation between the Community and the Member States in order to ensure the coherence and consistency of the action of the Community’s international representation (Case C-433/03 Commission v Germany [2005] ECR I-6985, para 66; and Case C-266/03 Commission v Luxemburg [2005] ECR I-4805, para 60). 54 See Commission v Council (FAO), above n 19. As for a deep analysis of the principle of cooperation, see C Hillion, ’Tous pour un, un pour tous! Coherence in the External Relations of the European Union’ in M Cremona (ed), Developments in EU External Relations Law (Oxford, Oxford University Press, 2008) 10. See also chapter five from the same author in this volume.

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Mixed Agreements from Perspective of European Parliament approach is certainly more effective than the other theoretically possible approach which would be to authorise the Member States to exercise the Union’s exclusive competence.55 For the Open Skies Agreement between the then Community and the USA,56 the Commission was also granted, in June 2003, a mandate to conduct negotiations on behalf of the Member States on matters that fall within their sphere of external competence. Such possibility might be transposed to other areas in order to avoid the difficult task of separating the EU and the non-EU parts of an agreement, and to reinforce the negotiating position of the Union. Besides, this corresponds to the interests of the European Parliament too, since it is with the Commission (and not with the Member States) that the political dialogue is directly established on the conduct of the negotiations, in accordance with the above-mentioned FA between the two institutions (point 19) (see section II.B.). As regards politically important agreements, in the conclusion of which the Parliament participates under the assent procedure, and at the negotiation of which the Presidency of the Council is present, it might be considered appropriate to envisage the presence of a representative of the Parliament too (for instance, the Rapporteur of the Committee on Transports for negotiations similar to those handled by the Commission in the Open Skies Agreement). Such an innovation could facilitate Parliament’s consent and ensure that the agreements which emerge are not just technically sound but also correspond to the general expectations of EU citizens and businesses in all their diversity. The Commission’s knowledge of the impact of the envisaged agreement would thus be more complete. Yet its negotiating position vis-à-vis third States should not be undermined, otherwise it would be counterproductive as it could reduce the success of the negotiations.

55 Eeckhout, ‘General Report’ in Xenopoulos, above n 2, 279. Authorisation to Member States to act in a field where the Community acquired exclusive competence was granted in two separate regulations concerning bilateral agreements on sectoral matters and covering applicable law in contractual and non-contractual obligations and agreements concerning sectoral matters and covering jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations, and applicable law in matters relating to maintenance obligations (Regulation (EC) N°662/09 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations, OJ L 200, 31 July 2009, 25; and Council Regulation (EC) N°664/ 2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, OJ L 200, 31 July 2009, 46). It is not out of the question that a similar approach will be used for bilateral agreements in the field of Foreign Direct Investment, on which the Union has now exlusive competence in accordance with Article 207 TFEU. 56 C Franklin, ‘Flexibility vs Legal Certainty: Article 307 EC and other issues in the aftermath of the “Open Skies” cases’ (2005) 10 Foreign Affairs Law Review 79.

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Ricardo Passos B.

The enhanced role of the European Parliament

1.

From disputes over legal basis issues to policy shaping

Over the last few years, Parliament has spent a considerable amount of time and energy verifying the legal basis proposed for agreements, in order to assess whether any of the four instances mentioned in former Article 300(3) EC, second subparagraph (assent procedure) could apply. In some cases, the Parliament challenged the Council Decisions concluding the agreements before the Court of Justice (see the Mauritania and Passenger Name Records (PNR) cases).57 As the assent procedure becomes the rule, the Parliament will be able to focus on the actual content of the agreements. In order to achieve this goal, the Parliament needs to receive the draft negotiating directives to be adopted by the Council, and put forward its preconditions on the agreements, as is foreseen in the current FA between the Parliament and the Commission (see section II.B.).

a. The European Parliament will enhance its position during the negotiations of the agreements According to Article 207(3) TFEU, third subparagraph, ’the Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations’. This applies to the negotiations on trade agreements, but could be seen as a model for all agreements on which Parliament is consulted under the consent procedure. As a matter of fact, according to Article 218(10) TFEU, ’the European Parliament shall be immediately and fully informed at all stages of the procedure’. This provision applies to all agreements, and even the agreements relating to the Common Foreign and Security Policy are not explicitly excluded. In this context, and in relation to the implications of the Treaty of Lisbon for the Parliament, INTA forwarded an opinion to the responsible Committee (the Committee on Constitutional Affairs, hereafter ‘AFCO’) on 27 May 2008, putting forward the suggestion that Parliament is entitled to establish preconditions in order to give its consent, and that the Commission should react to these preconditions before effectively entering into the respective negotiations.58 On 9

57 Judgment of 8 July 1999, C-189/97 Parliament v Council [1999] ECR I-4741 and Judgment of 30 May 2006 in Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission [2006] ECR I-4721. The Parliament has decided to seek before the Court the annulment of Council Decision 2008/780/EC of 29.09.2008 concerning the Southern Indian Ocean Fisheries Agreement ([2008] OJ L 268/27) on grounds that the assent procedure should apply because the agreement creates a ‘specific institutional framework’ within the meaning of second subparagraph of Article 300 (3)(Case C-566/08, OJ C 44 of 21 February 2009, 37). Subsequently, the Parliament withdrew this case. 58 Doc 2008/2063 (INI)–PE404.787v02.00.

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Mixed Agreements from Perspective of European Parliament March 2009, AFCO adopted its report on Parliament’s new role and responsibilities in implementing the Treaty of Lisbon (Rapporteur Leinen). On the basis of the latter, the European Parliament adopted a resolution on 7 May 2009. On this point, the Parliament stresses that, as regards the negotiation and conclusion of international agreements, the Commission will be under a legal obligation to inform Parliament of the progress of negotiations in the same way as the special committee designated by the Council as referred to in Article 218 TFEU; calls for this information to be provided to the same extent, and at the same time, as it is supplied to the relevant committee under that article59

Preconditions can be established at the beginning of and during the negotiations, but it seems that it would be more constructive if they were established at a very early stage. The idea is that if the Parliament is not able to intervene at a very early stage of the negotiations, its influence will be meaningless. The objective is obviously not only to express the willingness to accept an international agreement, but to participate actively in the ’policy shaping’ of the Union’s external policy. It seems clear that the Parliament has a firm political will to use the consent procedure in order to influence the very content of the international agreements to be concluded by the Union, or by the Union and the Member States. In this respect, as mentioned before, the will to delay its consent also has major political significance. In the same line, in the above-mentioned Resolution of 7 May 2009 on Parliament’s new role and responsibilities in implementing the Lisbon Treaty it is noted that Parliament’s consent will be required for a wide range of international agreements and that the Parliament underlines its intention to request the Council, where appropriate, not to open negotiations on international agreements until Parliament has stated its position, and to allow Parliament, on the basis of a report from the committee responsible, to adopt at any stage in the negotiations recommendations which are to be taken into account before the conclusion of negotiations.60

The Parliament seems to have developed a political inclination to adopt resolutions while negotiations of agreements are still ongoing, with a view to influencing the final content of the agreements. These resolutions contain ‘recommendations to the Council’. This approach is particularly important when the Parliament is consulted on the basis of the consent procedure, and are becoming more so with the entry into force of the Treaty of Lisbon. By acting in this way, the Parliament is putting direct pressure on the Commission and the Council before the latter signs the agreement. At the same time, the Parliament needs to assess the inconvenience of bringing to the public domain the contents

59 60

PA_TA (2009)0373, para 59. Above n 58, para 46.

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Ricardo Passos of ongoing negotiations and, in some cases, of possibly making these more difficult. It may be preferable, in particularly sensitive negotiations, to apply such pressure through direct dialogue with the Commission during the negotiating process. b. Enhancement of political issues in the negotiation of agreements: incorporation of human rights clauses, labour standards, observance of the environment or food safety standards As someone once said about the Lisbon changes on trade issues, ‘gone are the days when bureaucrats speak to bureaucrats,’ to illustrate the practice that agreements were basically negotiated and decided on the basis of meetings between Commission officials and national officials of the former ‘Article 133 Committee’. In the past, trade agreements were indeed basically confined to the economic dimension of trade relations. This will evolve with globalisation and with the increase of powers of the European Parliament, and it is now expected that there will be more public debates on the political and social dimensions of trade agreements. As already mentioned above,61 the Parliament already adopts resolutions containing its concrete political requests, to be incorporated in the agreement. It is on the basis of the willingness of the Commission and the Council to take them on board that the Parliament will subsequently decide on whether it gives its consent. It is thus to be expected that the process will be more political.

2.

The Parliament’s involvement in mixed agreements with a CFSP part

a. ‘Mixed’ agreements relating principally to CFSP By mixed agreements we mean not only agreements relating to Member States’ jurisdiction and to the Union’s jurisdiction, but also those with a TFEU policy part (trade, development, environment, etc) and a CFSP part. These agreements were mentioned as ’cross-pillar mixed agreements’, but this designation is no longer valid in the context of the Lisbon Treaty, which abolishes the pillar structure, albeit with specific procedures for CFSP matters.62 As for mixed agreements with a dominant CFSP dimension, two different categories exist: those relating principally to CFSP, and those relating exclusively to CFSP. As a result of Article 218(6) TFEU, Parliament has no say about 61

Section II.C. An example of an agreement concluded both by the European Union and the European Community is the agreement with the Swiss Confederation concerning the latter’s association with the implementation, application and development of the Schengen acquis (see Council Decision 2004/849/EC [2004] OJ L 368/26 and Council Decision 2004/860/EC [2004] OJ L 370/78). 62

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Mixed Agreements from Perspective of European Parliament agreements in the latter category; but as regards the former, Parliament either has to give its consent or must be consulted for the agreement to be concluded. Article 218(6) TFEU explicitly states that: Except where agreements relate exclusively to the CFSP, the Council shall adopt the decision concluding the agreement: (a)

after obtaining the consent of the European Parliament in the following cases : ... (v)

(b)

agreements covering fields to which . . . the ordinary legislative procedure applies . . .

after consulting the European Parliament in other cases. . . .

The question is to assess the appropriate legal basis (and thus the applicable procedure) for these mixed agreements. Under the Treaty of Nice, the legal basis of a cross-pillar mixed agreement relating to CFSP or JHA always included a reference to then Articles 24 or 38 TEU, and therefore the unanimity rule applied if the agreement covered an issue for which unanimity was required (former Article 24(2) TEU). Under the Treaty of Lisbon, the so-called pillar structure was abandoned and one single provision foresees the procedure for the negotiation and conclusion of EU international agreements. The question is thus whether and, if so, to what extent the case law of the Court of Justice applies concerning the choice of the legal basis. According to this case law, if examination of a measure reveals that it pursues two aims, or that it has two components, and if one of those is identified as the predominant one whereas the other is merely incidental, the measure must be founded on a single legal basis, namely, that required by the predominant aim or component.63 The choice of the appropriate legal basis thus depends on the content and the aim of the agreement envisaged, or the fact that it relates to CFSP requires necessarily unanimity on the basis of Article 218(8) TFEU, second subparagraph.64 We believe that this case law continues to apply. Thus, if an agreement relates principally to a TFEU policy and only incidentally to CFSP, the legal basis should in principle be that required only by the predominant TFEU component (transport, trade, environment, etc) together with a reference to Article 218(6) TFEU (procedural legal basis), otherwise all these agreements would need to be concluded by unanimity. If the agreement’s predominant aim is CFSP, the same principle should apply and the legal basis would be Article 37 TEU, together with Article 218(6) TFEU (procedural legal basis). As for the choice of the procedure for consultation of the European Parliament, that is to say Article 218(6)(a) or 63 See, inter alia, Case C-155/91 Commission v Council [1993] ECR I-939; and more recently Case C-155/07 Parliament v Council, judgment of 6 November 2008, nyr, para 35. 64 Art 218(8) reads as follows: ‘The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act . . .’

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Ricardo Passos (b) TFEU, that would depend on the TFEU policy pursued by the agreement: if it covers a field to which the ordinary legislative procedure applies then consent is required (Article 218(6)(a)(v) TFEU); if it relates, more exceptionally, to other cases (for instance Article 103 TFEU on competition, where the ordinary legislative procedure does not apply) then Article 218 (6)(b) TFEU is the correct procedural legal base and the Parliament is merely consulted.65 According to this interpretation, a ’mixed’ agreement relating principally to CFSP (with a TFEU policy part) would be concluded in principle by unanimity of the Council, after consulting the European Parliament. This is new, because under the previous Treaties, the European Parliament was not consulted at all on CFSP or JHA agreements. With regard the above-mentioned Resolution of 7 May 2009 on Parliament’s new role and responsibilities in implementing the Lisbon Treaty, the Parliament came to this conclusion and urges that any future ‘mixed’ agreement combining non-CFSP and CFSP elements must normally be dealt with under a single legal basis, which should be the one directly related to the main subject-matter of the agreement (para 47).

What about an agreement which simultaneously and to the same degree pursues a TFEU objective and a CFSP objective? What would be the appropriate legal basis? This situation has arisen in recent years concerning a Council Decision with two components, neither of which being incidental to the other, one falling within Community development cooperation and the other within the CFSP.66 The Council considered, however, that the decision in question related to CFSP and adopted it on the basis of the TEU. The Commission (supported by the Parliament) sought annulment of this Decision before the Court. In its judgment, the Court considered that it would not be possible, exceptionally, to found the Decision on two legal bases—one from the then EC Treaty and one from the EU Treaty—because of then Article 47 TEU.67 The Court considered that this provision ’precludes the Union from adopting on the basis of the EU Treaty a measure which could properly be adopted on the basis of the EC Treaty’.68 Does this reasoning apply to the Treaty of Lisbon? It is not easy to provide a clear answer. Article 47 TEU (Nice) was replaced by Article 40 TEU (Lisbon). The latter provision has a different content because it states that the implementation of the CFSP shall not affect the external powers laid down in the TFEU and that

65

Passos and Marquardt, above n 47, at 910. 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] OJ L/359/65. 67 This provision read as follows: ‘Subject to the provisions amending the Treaty establishing the European Economic Community with a view to establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.’ 68 Case C-91/05 Commission v Council [2008] ECR I-3651. 66

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Mixed Agreements from Perspective of European Parliament similarly the implementation of the policies laid down in the TFEU shall not affect the CFSP. Moreover, former Article 47 TEU aimed, in accordance with Article 2, fifth indent, and former Article 3(1) TEU, to maintain and build on the acquis communautaire. These provisions have not been included in the Treaty of Lisbon. It remains true, however, that a CFSP measure cannot be adopted under the TEU if it can be adopted under the TFEU (Article 40 TEU). This principle continues to exist. It is also true that, with the Treaty of Lisbon, the procedure to adopt a CFSP measure is very different from the procedures foreseen in the TFEU, that is to say, ordinary legislative procedure and consent procedure for the conclusion of international agreements. Thus, the powers conferred on the institutions to act as well as the institutional balance are substantially different in the TEU and in the TFEU. It can therefore be argued that if an agreement were to pursue simultaneously and with the same intensity CFSP objectives and a policy laid down in the TFEU, new Article 40 TEU would preclude the Union from adopting, on the basis of the TEU, an agreement which could be adopted on the basis of the TFEU.69 b. Agreements relating exclusively to CFSP: Article 36 TEU as an empty shell? Where agreements relate exclusively to the CFSP, there is no formal role whatsoever for the European Parliament, other than the general obligation of the High Representative (hereafter ‘HR’) to consult the European Parliament on a regular basis. The former Article 21 TEU has been slightly modified by the Lisbon Treaty. Article 36 TEU states that the HR ‘shall ensure that the views of the European Parliament are duly taken into consideration’. It should be noted that until now this provision has not been implemented in practice by the Council. It is expected that with the introduction of this function of the HR, who is also Vice-President of the Commission—and thus also subject to a certain political control by the Parliament—this provision will be taken more seriously, bearing in mind that according to the EU budgetary procedure, the Parliament can set a ceiling on the annual budget for CSFD. 3. Implementation of mixed agreements: suspension for non-compliance with essential clauses With the consent procedure as a rule—and consequently its more active involvement in the negotiation and conclusion of mixed agreements—the Parliament’s input would be visible through the incorporation of the above-mentioned more politically sensitive provisions in such agreements. As a consequence, the Parliament would exercise stronger political pressure regarding the possible suspension of the agreements in question in cases of non-compliance with these types of 69 Art 218(3) TFEU entails a specific procedure for the nomination of the Union negotiator taking into account the predominant aim of the agreement.

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Ricardo Passos provisions, or more generally provisions relating to human rights, democratic principles and the rule of law (for instance the application of Article 96 of the Cotonou Agreement on the consultation procedure and appropriate measures as regards human rights foreseen in the EPA with CARIFORUM States, mentioned in section II.C. above). The Parliament supports the view that non-compliance with human rights clauses is to be considered as a violation of an essential clause of the agreement. This applies to all agreements (mixed or not).70 In relation to EPAs, the Parliament called for the creation of a joint Parliamentary Trade and Development Committee, with each EPA working with the ACP–EU Joint Parliamentary Assembly to monitor the agreement. Indeed, as pointed out by Mischo, insofar as the EU is granting preferential treatment and financial aid to third countries it must be entitled to make these conditional upon the respect of human rights. The cases of Serbia and Zimbabwe have shown in a particularly striking manner that it is not conceivable for agreements to continue to be implemented by the EU when major violations of human rights are being committed by the other Contracting Party.71 The Parliament will surely play an enhanced role in this context, and will certainly insist on the need to incorporate suspension clauses in the agreements concluded by the Union alone or jointly with the Member States. However, the Parliament will not participate in legal terms in decisions to suspend an agreement. This may be regrettable, because such decisions are nearly always highlycharged political acts.72 Some have thus argued that suspension is a particularly sensitive matter which should not be decided without Parliament’s approval.73 Parliament may only call on the Council, in accordance with Article 218(9) TFEU, to suspend the application of agreements. It may also call on the Commission to propose the suspension to the Council.74

C. Inter-parliamentary cooperation between the European Parliament and the national parliaments Mixed agreements are subject to double parliamentary control, both by the national parliaments and by the European Parliament. National parliaments are involved, since by definition mixed agreements need to be ratified by all the Member States. 70 Parliament’s scrutiny of the human rights situation in third States is already particularly visible in cooperation agreements and fisheries agreements. 71 National Report from Luxembourg concerning external relations of the EU, FIDE 2006 national reports, at 141. 72 Eeckhout, above n 5, 189. 73 Bieber, above n 19, 114. 74 The Parliament decided to suspend its opinion on the interim trade agreement with Turkmenistan because it did not obtain a written commitment from the Council and the Commission, according to which the agreement would be suspended at the request of the Parliament on the grounds of a violation of human rights (see debates in CRE 25/03/2009–8).

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Mixed Agreements from Perspective of European Parliament It goes beyond the scope of the present chapter to analyse the procedure of scrutiny of mixed agreements by national parliaments. It suffices to note that the national scrutiny procedures are very different and their effectiveness varies.75 In general, in most Member States, governments are obliged to inform their parliaments about all proposals within the framework of the European Union, and afford them the opportunity to voice their opinion.76 Taking into account the enhanced role of the European Parliament with the consent procedure as a general rule, it seems appropriate to establish cooperation between the European Parliament and the national parliaments on the basis of the Protocol No 1 annexed to the Treaty of Lisbon on the role of national parliaments. Article 9 of the latter provides that the European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular inter-parliamentary cooperation within the Union.

National parliaments are in principle not involved in the scrutiny of the principle of subsidiarity concerning international agreements, because the subsidiarity control applies only to draft legislative proposals, and neither the Council decisions concluding the international agreements nor the latter can be considered as ’legislative’ proposals. However, independently of the question of subsidiarity, national parliaments may object to the agreement and not ratify it. In such a case, the Council is not able to conclude the agrement in question. Concerning mixed agreements of political importance, a form of interparliamentary cooperation could facilitate and accelerate the national procedure of ratification. The Conference of Community and European Affairs Committees of Parliaments of the European Union (COSAC), which meets twice a year, might constitute the basis for such cooperation.

75 This matter was considered in the Tenth Bi-annual Report of the XL COSAC on 3–4 November 2008, in Paris (see Chapter 4: Scrutiny of the agreements negotiated by the European Community: ). 76 Eg, Art 23(e), para 1 of the Austrian Constitution; Art 23 of the German Constitution; Art 94, para 1 of the Spanish Constitution, which holds that the authorisation of the Cortes Generales (by simple majority in the two chambers) is mandatory for the conclusion of any international treaty of political nature, or of a treaty affecting the fundamental rights and obligations established in Title I of the Constitution, or treaties implying the modification or the derogation of a national law or requiring legislative measures for its implementation. The Norwegian Constitution holds that when an international agreement cover matters of ‘special importance’, and in any event where the implementation of the agreement necessitates a new law by the Norwegian Parliament, it will not be binding until Parliament has given its consent (Art 26, para 2 of the Constitution, quoted by C Franklin, above n 2, 166).

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Ricardo Passos IV.

CONCLUSION

Under the Treaty of Nice, it was evident that the lack of involvement of the European Parliament in the initiation and negotiation of international agreements created a ‘democratic’ deficit and was not compatible with the recent trend in a globalised world to conclude agreements with an important impact on the lives of citizens without giving them a say. The Treaty of Lisbon changes this situation and it is thus justified to predict an enhanced role for the European Parliament in the launching and negotiation of agreements relating to, for example, fundamental political, civil and social rights, climate change, environment, trade, financial crisis, safety in transports or the quality of goods and services. For the Union’s external policy to be legitimate, democratic control by the European Parliament is required, and it is obvious that the search for greater effectiveness cannot justify the absence of proper parliamentary scrutiny and public debate. The Treaty of Nice did not provide for sufficient involvement of the European Parliament. Former Article 300 EC did not foresee any role for the Parliament either in the decision to launch an international negotiation, or in the directives issued to the Commission or in the supervision of the latter’s conduct of the negotiations. It is true that the Parliament has agreed on informal procedures with the Council (Luns-Westenterp procedures) and has concluded a Framework Agreement with the Commission, obliging the latter to provide early information on the negotiation of international agreements. However, these instruments did not suffice, and the Framework Agreement with the Commission has not been implemented in a manner that gives full satisfaction to the Parliament. Generally, the responsible Parliamentary Committees have not been sufficiently informed about the negotiating mandate and the negotiations. In recent years, the Parliament has developed the practice of adopting resolutions containing recommendations to the Council and the Commission requesting the insertion of certain clauses in the agreements under negotiation. These resolutions played an important role, in particular when the Parliament was subsequently called to give its assent. With the Treaty of Lisbon, the involvement of the Parliament is changing dramatically, because all agreements relating to areas covered by the ordinary legislative procedure are to be concluded by the Council following the ‘consent’ of the Parliament. Since this implies that the Parliament will be entitled to reject any international agreement before it is concluded, its role in the actual shaping of international agreements will be real. This will also happen with mixed agreements, because the Parliament is consulted on the agreements as a whole, and its refusal to give consent implies that the agreements (mixed or not) cannot be concluded by the Council. This should enable the Parliament to focus on the actual political content of the agreements, and not so much on the procedure for their conclusion as in recent years.

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Mixed Agreements from Perspective of European Parliament In order to achieve this goal, the Parliament needs to receive the draft negotiating directives to be adopted by the Council and put forward its preconditions on the agreements. The objective is obviously not only to express its willingness to accept an international agreement, but also to participate actively in the ’shaping’ of the Union’s external policy. It seems clear that the Parliament has a firm political will to use the consent procedure in order to influence the very contents of the international agreements to be concluded by the Union, or by the Union and the Member States, in particular by requesting incorporation of clauses on human rights, labour standards and the observance of environment or food safety standards. The Parliament has already shown this intention in several resolutions adopted recently concerning association agreements and trade agreements, and with regard to the EPAs with the ACP partners. Recently, by a Resolution of 11th February 2010 the Parliament withheld its consent to the conclusion of the EU’s interim agreement on banking data transfers to the USA via the SWIFT network. The Parliament considered that the interim agreement did not sufficiently protect personal data, in particular concerning their transfer to third States and their storage. In its resolution, the Parliament requested the Commission to immediately submit recommendations to the council with a view to a long-term agreement with the USA and stressed that any agreement in this area should comply with the new legal framework established by the Treaty of Lisbon and the now binding Charter of Fundamental Rights (P7-TA (2010) 0029). The Treaty of Lisbon, by including a single provision governing the procedure for all international agreements concluded by the Union (Article 218 TFEU), may open the way for the enhanced position of the Parliament in ’mixed’ agreements involving a CFSP part and a TFEU part. With the exception of agreements relating exclusively to CFSP, the consent of the Parliament is foreseen when an agreement involves CFSP, provided that its predominant aim relates to a Union policy to which the ordinary legislative procedure applies. If the agreement primarily affects CFSP, even in that case the Parliament will be consulted. Moreover, as the consent procedure becomes the norm, the Parliament will exercise stronger political pressure as regards the possible suspension of the agreements in question in cases of non-compliance with certain provisions, such as those relating to human rights, democratic principles and the rule of law. Lastly, since mixed agreements are subject to a double parliamentary control, both by the national parliaments and by the European Parliament, it seems appropriate to establish cooperation between these bodies on the basis of Protocol No 1 annexed to the Treaty of Lisbon on the role of national parliaments (Article 9). Concerning mixed agreements, inter-parliamentary cooperation could facilitate and accelerate the national procedure for their ratification. As a counterpart of its enhanced powers, the European Parliament must establish working methods enabling the Commisison to transmit confidential

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Ricardo Passos information in all security. In this regard, arrangements already exist77 but may need to be improved in order to create a complete trust and good cooperation between institutions. Concerning CFSP, in its resolution of 7 May 2009 on Parliament’s new role and responsibility in implementing the Treaty of Lisbon, the Parliament requests an update of the interinstitutional agreement between Parliament and the Council defining their working realtions concerning foreign policy, including the sharing of confidential information on the basis of Article 14 and 36 TEU and Article 295 TFEU (para78).

More generally, the Parliament calls on the Council and the Commission to consider the negotiation with Parliament of a new interinstituional agreement providing Parliament with a substantive definition of its involvement in every stage leading to the conclusion of an international agreement (para 79).

As the new Commission is appointed, the institutions need to take into account the new role of the European Parliament, in particular in the Union external policy. It is thus fundamental that arragements are made in order to set up proceedings compatible with the Union role with a view to assuring its efficiency. This is yet another challenge launched by the institutional improvements entailed by the Treaty of Lisbon.

77 See Annex VIII to the Rules of Procedure of the European Parliament on ‘confidential and sensitive documents communicated to Parliament’.

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14 Mixity in Practice—A View from The Netherlands IVO VAN DER STEEN*

I.

INTRODUCTION

T

HE POLICY OF the Dutch Government towards participation in EU external relations may be conveyed by the motto ‘principles where necessary, practical when useful’. An illustration of this guideline is the refusal of the Dutch Government, until last April, to sign the Stabilisation and Association Agreement (SAA) with Serbia. The reason for this refusal was so-called ’ICTY conditionality’. The Netherlands demanded the full cooperation of Serbia with the International Criminal Tribunal for the former Yugoslavia (ICTY), to be demonstrated by arresting and transferring the remaining indictees to The Hague.1 Strongly advocating the authority of this UN tribunal, The Netherlands could not allow a political gesture like the signing of the SAA to go ahead without undermining this policy. But with a view to the then imminent elections in Serbia, in which the pro-EU political parties had to be supported, the SAA was signed, albeit with the caveat of ratification. Since it is a mixed agreement, each Member State has to approve and ratify it. National parliaments might, at a later stage, deny approval if by that time ICTY conditionality provision had not been met by Serbia.2 The arrest of Radovan Karadzic, in July 2008, was welcomed by the Dutch Ministry of Foreign Affairs (MFA). However, Serbia has to arrest the other suspects as well, in particular Ratko Mladic, and hand them over to the

*

All views expressed are strictly personal. See the Explanatory Memorandum to COM/2007/0743 final, Proposal for a Council Decision on the signing of the 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. 2 See Press Release 8619/01 (presse 105) of the 2864th and 2865th Council Meetings on General Affairs and External Relations, Luxembourg, 29 April 2008, 8. 1

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Ivo van der Steen Tribunal in The Hague. ‘It is not yet possible for the Stabilisation and Association Agreement between the European Union and Serbia to enter into force,’ according to the MFA.3 Some say we unite the hearts of the preacher and the merchant in one body. That is not correct. My impression is that we stand for our principles but are willing to compromise when the other Member States are not following us. An EU strong and united in external action is more important than watered-down action or no action at all. As one of the ‘Founding Fathers’ of the EU, The Netherlands also has a strong preference for what has been known until the Lisbon Treaty as the ‘Community way’ in external relations. This means a strong role for the EU on the world stage, and an explicit role for the EU institutions involved. In this context, we favour a strong role for the European Commission in cases of shared competences and, where possible, as the sole negotiator with respect to Member States’ competences. Sometimes we ask for a role of our own, but always with respect for the requirement of unity in the external representation of the Union. This chapter will discuss, first, some practical issues about mixed agreements at the level of the EU, and then problems which arise domestically. It will refer to practical solutions introduced in The Netherlands and will explain the national procedures for the constitutional approval of mixed agreements.

II.

DISCUSSIONS AT EU LEVEL

The division of competences between the EU and the Member States gives rise to numerous debates at the level of the EU, but also within domestic administration. It will not be a surprise that these debates focus on the question whether an agreement should be labelled as an exclusive competence of the Union, or as a competence shared with the Member States. It still leads to surprised reactions from national officials when the adoption of internal EU legislation turns out to result in Union’s exclusive competence at an international level. The Open Skies Agreements4 and the renewal of the Lugano Convention5 are well-known examples. But in other areas too, such as ILO

3 See MFA-Press release at . 4 See the observations of the Member States in Case C-466/98 Commission v United Kingdom [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-9575, 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, and Case C-476/98 Commission v Germany [2002] ECR I-9855, Case C-523/04 Commission v The Netherlands [2007] ECR I-3267. 5 Opinion 1/03 New Lugano Convention [2006] ECR I-1145.

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Mixity in Practice—A View from The Netherlands Conventions on labour and social security standards, every now and then those who see their field of responsibility suddenly invaded by the Commission are taken unawares. To explain the principles of the exclusive competence of the Union, it is of great help to refer to the overview of the Court of Justice in its opinion on the Lugano Convention.6 However, some flexibility still remains in the interpretation of the Court. According to the Court of Justice, it concerns areas which, ‘to a large extent’ are covered by common rules. But what exactly is ‘to a large extent’? Not only the current state of EU legislation has to be taken into account, but ‘the future development insofar as foreseeable at the time of analysis’ also has to be considered. I am a very cautious person, and would generally accept only A-points on the agenda of the Council as ‘foreseeable’.7 An example of the evolution in the reasoning on competences can be found in the approach to be taken in the International Whaling Commission on the moratorium on the catching of whales. Should it be based on the common fisheries policy? In that case we talk about the exclusive competence of the Union. Or should it be based on the environmental policy, leaving a parallel competence to the Member States involved (the Union itself is not a Party, and neither are some Member States). The Netherlands is of the opinion that the preservation of whales has evolved into an environmental issue, far more than an issue of exploitation in the common fisheries policy. And moreover, of course, whales are not fish. In environmental issues, the parallel competence is enshrined in Article 191(4) TFEU (ex Article 174(4) EC). Yet it is not quite clear how this parallel competence relates to the ‘requirement of unity in the international representation of the Community’, as defined by the Court of Justice in its pre-Lisbon case law.8 Early in 2004 the Commission sent us a warning letter because The Netherlands had tabled a proposal to list a certain chemical in the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants.9 With a view to our incoming Presidency we choose not to clash with the Commission, although the legal questions remained. We found a new

6

Ibid, paras 121–33. See Art 3(6)–(8) of the Council’s Rules of Procedure ([2006] OJ L285/47): ‘The provisional agenda shall be divided into Part A and Part B. Items for which approval by the Council is possible without discussion shall be included in Part A, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes.’ In addition, para 8 states: ‘However, an “A” item shall be withdrawn from the agenda, unless the Council decides otherwise, if a position on an “A” item might lead to further discussion thereof or if a member of the Council or the Commission so requests.’ 8 Opinion 2/91 ILO [1993] ECR I-1061, para 36; Opinion 1/94 WTO [1994] ECR I-5267, para 108. 9 See Council Decision of 19 February 2004 concerning the conclusion, on behalf of the European Community, of the Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Persistent Organic Pollutants [2004] OJ L/81/35. 7

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Ivo van der Steen opportunity this year, when it turned out that Sweden was involved in the same type of conflict with the Commission in the framework of the Stockholm Convention on Persistant Organic Pollutants.10 The Netherlands has intervened in the infringement procedure before the Court of Justice in Case C-246/07 in support of Sweden.11 Our national ministries claim also a shared competence when an agreement calls for a substantive role for the Member States in enforcement at national level. This was the case, for instance, in the UN Agreement on Straddling and Highly Migratory Fish Stocks, which gives participating States strong enforcement powers.12 We also have a clear idea of the involvement of Member States when such States are asked, or have offered, to bear the costs of a particular action in international cooperation. For instance, in the UN Peace Building Committee, we favour the Dutch saying: ‘He who pays, has a say.’ Although the external action of the EU is clearly based on a legal framework, its highly political nature cannot be denied. In practice, a solution is often found with an eye open to flexibility. Yet the involvement of the Member States has another side too. Mixed agreements in particular call for approval and ratification by all Member States. This is sometimes a long procedure, fraught with political difficulties at the national level. Several years may pass before a mixed agreement enters into force. The need to speed up the conclusion of agreements has been felt, in the pre-Lisbon context, especially in cases where both political cooperation and then ‘first-pillar’ matters were involved. Normally this combination should have led to a mixed agreement, with both the then Community and the Member States involved. The idea of two different agreements—the political agreement based on the then ‘second pillar’ and the trade agreement based on the then ‘first pillar’—caused problems as regards the linking of both agreements with a view to possible suspension or termination. That is why The Netherlands presented a discussion paper in 2002 in the Council Working Group on External Relations (RELEX), advocating making use of a tripartite agreement whenever competences of both the European Community and the European Union vis-à-vis a third country or an international organisation were involved. That would have left out the Member States, speeding up the negotiations and entry into force. The agreement would have then consisted of a single document. The internal decisions to sign and approve the agreement would have been distinct and could each have been based on their own legal base in the EU Treaty, and the then EC Treaty respectively. The validity of this 10 See Council Decision of 14 October 2004 concerning the conclusion, on behalf of the European Community, of the Stockholm Convention on Persistent Organic Pollutants, [2009] OJ L/209/1. 11 [2007] OJ C/183/19. 12 See Council Decision of 8 June 1998 on the ratification by the European Community of the Agreement for the implementing of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling stocks and highly migratory fish stocks, [1998] OJ L/189/14.

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Mixity in Practice—A View from The Netherlands approach had been endorsed by the Council Legal Service, and discussed several times to be finally advocated by the Presidency in the negotiations on the Partnership and Cooperation Agreement with Thailand, and on the ASEAN Treaty on Amity and Cooperation. But strong opposition from some other Member States has until now led up to the retention of classical mixed agreements, leaving Member States with great influence on the content and conclusion of the agreements.13 Meanwhile, only one tripartite agreement has materialised: the Agreement between the European Union, the European Community and the Swiss Confederation concerning the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis.14 III.

INTERNAL PROBLEMS

Being an adviser on European Law, you are not always a welcome messenger. You have a lot to explain. National officials, who are highly skilled in their field of policy, often lack knowledge about external competences. And where ignorance prevails, unwillingness stands just around the corner. Even when everything is clear, one might have to overcome controversies between the ministries involved. Officials often see their policy field as their private garden, which is invaded by intruders with whom they usually have no contact. There is often great mistrust: ’You give the Commission a finger and they will take the whole hand!’ It is considered a coup d’état when the European Commission claims competences in such sensitive areas as culture or social security. For instance, in preparing, at a national level, the negotiations within UNESCO on the draft Convention on Cultural Diversity (CCD), we had strong discussions about the code of conduct for the negotiations on the CCD15 and the code of conduct for the meetings on the implementation of the CCD.16 Controversies as to the common commercial policy prevailing over cultural issues, and vice versa, did not always speed up the formulation of our internal standpoint. 13 And I must admit that this was also of use to The Netherlands in the case of the SAA with Serbia, as described in section I. above. 14 See Council Decision of 28 January 2008 on the conclusion on behalf of the European Union of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ([2008] OJ L/53/50), and Council Decision of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ([2008] OJ L/53/1). 15 Code of conduct between the Council, the Member States and the Commission on the UNESCO negotiations on the draft Convention on the protection of the diversity of cultural contents and artistic expressions, Council Doc 5768/05 of 31 January 2005 (accessible on the Council’s website). 16 Code of Conduct between the Council, the Member States and the Commission for the participation of the Community and its Member States in meetings regarding the implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Council Doc 5914/07 of 1 February 2007 (accessible on the Council’s website).

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Ivo van der Steen In the International Labour Organisation (ILO), to which the Union is not a Party, Member States felt overpowered, in the pre-Lisbon context, by the claim of the Commission for the exclusive competence of the Community as regards the provisions of the Maritime Labour Convention concerning the coordination of social security schemes.17 Here, the ERTA doctrine,18 calling for Community exclusive competence whenever international commitments fall within the scope of common rules, was applied to the earliest secondary legislation of the Community.19 The Dutch delegation had introduced the debate on the appropriateness of the Commission’s point of view in the EU Administrative Commission on the Social Security of Migrant Workers, by doing so unintentionally reaffirming the EU competence. Not so long ago, I was asked to advise on a letter from the Commission to the customs division of our Finance Ministry. It stated that the Commission would start an infringement proceeding if a certain proposal of the Dutch and the German delegation in the framework of the UNECE TIR Convention20 was not taken off the table. It turned out that the representatives of The Netherlands and Germany had tabled a proposal on their own initiative without having coordinated it with the Commission and the other Member States. There was even a second letter threatening to start infringement proceedings. Chairing a working party, the Dutch representative had sent the Commission representative out of the room, adding that the members of the working party were perfectly able to discuss the draft proposal without the Commission’s contribution. The Dutch representative explained his attitude with reference to the approach of the Commission’s representative, who had long favoured the one-sided opinions of the transport sector without balancing them with the needs of the Member States’ governments. I suggested that they put this problem forward at an appropriate level, but at the same time I had to urge them to withdraw their common proposal. I convinced them that it was not in the interest of The Netherlands to provoke an infringement procedure in the absence of strong legal arguments.

17 See points (6) and (8) of the preamble to Council Decision of 7 June 2007 authorising Member States to ratify, in the interests of the European Community, the Maritime Labour Convention, 2006, of the International Labour Organisation [2007] OJ L/161/63. 18 Case 22/70 Commission v Council (ERTA) [1971] ECR 263. 19 Regulation No 3 on social security of migrant workers [1958] OJ 30/561, replaced by Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, [1997] OJ L/28/1, as amended. 20 The Customs Convention on the International Transport of Goods under Cover of TIR Carnets (‘the TIR Convention’) was signed in Geneva (Switzerland) on 14 November 1975. All Member States are a party to the Convention, as is the European Community, which approved it by Council Regulation (EEC) No 2112/78 of 25 July 1978, [1978] OJ L/252/1. The Convention entered into force for the Community on 20 June 1983, [1983] OJ L/31/13.

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Mixity in Practice—A View from The Netherlands IV.

PRACTICAL SOLUTIONS

Questions on external competences arise almost every day. That is why the Dutch Interdepartmental Commission on European Law issued a guide to external competences of the EU. It contains explanations, Q&As and a checklist to help Dutch officials to find their way in this area.21 The guide is available on the website of the Centre of Expertise on European Law (ECER); the ECER is embedded within the European Law division of the Dutch MFA and acts for the benefit of officials in the Dutch ministries. It helps policymakers, lawyers and facilitating services to find their way through the rules of the European game and the practical issues of Europe. In controversies between ministries caused by diverging policy interests, the MFA takes its responsibility for national coordination seriously, acts as an honest broker and is accepted as a mediator with authority. V.

NATIONAL APPROVAL OF AGREEMENTS

In relation to the procedure for the ratification of international treaties in The Netherlands, the relevant provisions are laid down in the Kingdom Act on the Approval and Publication of Treaties (1994),22 based on Articles 91 and 95 of the Dutch Constitution. The Kingdom Act contains provisions on the approval by Parliament of treaties, on the publication of treaties and on the information of Parliament on treaties being negotiated. After a treaty has been signed, the text of the treaty and an explanatory report on the treaty are sent to the Council of State for its advice. The report of the Council of State normally follows within two or three months. This report has to be presented to the Head of State. Meanwhile, the text of the treaty is published in The Netherlands Treaty Series, with, where necessary, a translation into Dutch. On the basis of the report by the Council of State, the explanatory report is often amended; this may take a few weeks, or longer. The treaty and the explanatory report are then sent to Parliament for its approval. Parliamentary approval may be obtained by means either of the explicit procedure, ie by Act of Parliament, or of the so-called ‘silent procedure’. The explicit procedure, to be followed first in the Second Chamber and then in the First Chamber, is the same as for other Acts of Parliament. It may take one year or more. Under the ‘silent procedure’, which is usually followed, the treaty and the explanatory report are submitted to the First and Second Chambers simultaneously. If, for a period of 30 days, no explicit procedure is requested, the treaty will automatically be approved at the end of the 30-day period, and the Government 21 Interdepartementale Commissie Europees Recht (ICER), Handleiding externe bevoegdheden, The Hague, 2003, . 22 Rijkswet goedkeuring en bekendmaking verdragen, Staatsblad 1994, 542.

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Ivo van der Steen may ratify the treaty. Under this procedure, it takes approximately half a year from the signature of the treaty to its ratification. These procedures were followed both for mixed agreements based on the EC Treaty and for agreements based on former Article 24 TEU (now Article 37 TEU). In the latter case, approval would not be followed by subsequent ratification by The Netherlands, as only the EU was a Party to the agreement. The Netherlands made use of the provisions of former Article 24(5) TEU (reservation stating that compliance with the requirements of our constitutional procedure is necessary) when the ‘Article 24 agreement’ contained obligations which had to be fulfilled by the Kingdom and which could have affected Dutch citizens in a direct way.23 Until the entry into force of the Lisbon Treaty, this had been the case only with agreements concerning criminal matters based on former Article 38 TEU (repealed by the Treaty of Lisbon).24 The assessment whether or not an ‘Article 24 agreement’ contained such obligations had to be made on a case-by-case basis. Regarding the interim agreement between the EU and US on PNR data (2006), use was made of the then Article 24(5) TEU reservation, but in the end no parliamentary approval was requested because the agreement was to last for a period shorter than one year (Article 7 of the Kingdom Act on the Approval and Publication of Treaties provides for this exemption). The Dutch Parliament accepted this.

VI.

CONCLUSION

Will life be easier now that the Lisbon Treaty has entered into force? In some ways, yes. The hybrid approval of agreements based on former Articles 24/38 TEU no longer gives rise to problems. The regular EU system on international agreements is applicable to CFSP agreements as well as foreseen by Article 218 TFEU. That is an advantage. On the other hand, issues like the choice of legal 23 See the reaction of the Cabinet on the report of the Council of State on the approval of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, Parliamentary documents 2006/2007, 31010, no B/2, p 3. 24 Agreement between the European Union and the United States of America on Extradition and Agreement on Mutual Legal Assistance between the European Union and the United States of America, [2003] OJ L/181/25; Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security, Bureau of Customs and Border Protection, [2006] OJ L/298/27; Agreement between the European Union and the United States of America on the processing and transfer of passenger name record (PNR) data by air carriers to the United States Department of Homeland Security (DHS) (2007 PNR Agreement), [2007] OJ L/204/16; and Council Decision of 28 January 2008 on the conclusion on behalf of the European Union of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, [2008] OJ L/53/50.

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Mixity in Practice—A View from The Netherlands base that emerged from the ECOWAS judgment25 are not solved by the Lisbon Treaty. It will still be difficult to determine what the predominant part of the envisaged agreement is about. As a consequence, it will not always be clear who is to determine when an agreement should be proposed by the Commission or the High Representative, and which procedures to apply. And even after the incorporation of the Police and Judicial Cooperation in Criminal Matters Title into the Treaty on the Functioning of the European Union,26 questions on how to determine the correct legal base for international agreements in relation to other parts of the Treaties may still be raised.27 Given the principle of attribution of competences within the EU, the daily debates on mixed agreements will continue.28 And they will bring joy to a government adviser and bread and butter to his family!

25

Case C-91/05 Commission v Council [2008] ECR I-3651. See Arts 82–89 TFEU. Further on this point, see chapter eighteen in this volume by Alan Dashwood. 27 See Joined Cases C-317/04 and C-318/04 European Parliament v Council and Commission [2006] ECR I-4721, and Case C-301/06 Ireland v Parliament and Council, judgment of 10 February 2006, nyr. 28 On this point, see chapters eighteen and nineteen of this volume, by Alan Dashwood and Allan Rosas respectively. 26

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15 Mixity in Practice—A Member State Practitioner’s Perspective IVAN SMYTH*

I.

INTRODUCTION

A

RE MIXED AGREEMENTS in decline? This is certainly not my experience. As the European Union strives to develop its network of bilateral agreements with third countries and as it expands its competence into new areas, mixed agreements remain centre stage. Addressing the difficult issues that arise in relation to their negotiation and conclusion remains an essential skill set for any Government lawyer practising in the field of the European Union’s external relations. This chapter sets out some of the issues that have commonly arisen for Government lawyers, prior to the entry into force of the Lisbon Treaty, when advising on the negotiation and conclusion of agreements involving participation by the European Community and Member States, starting with the granting to the Commission of a negotiating mandate by the Council and ending with the Council Decision on conclusion of the final agreement by the European Community. II.

NEGOTIATING MANDATES

The EC Treaty provides remarkably little guidance on what procedures need to be followed by the Community and the Member States when deciding who should be authorised to negotiate a mixed agreement or how responsibility should be allocated to different players. Former Article 300(1) EC (new Article 216(1) * The views expressed in this chapter are personal to the author, and do not represent the views of the United Kingdom Government. The author wishes to thank Shelagh Brooks, Deputy Legal Adviser, Foreign and Commonwealth Office, and Andrew Cannon, Assistant Legal Adviser, Foreign and Commonwealth Office, for their very helpful comments and suggested changes to an earlier draft, and his Personal Assistant, Diane Macklin, for her invaluable editorial work on the draft manuscript.

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Mixity in Practice—A Member State Practitioner’s Perspective TFEU) talks only about the negotiation and conclusion of agreements between the Community and one or more States or international organisations, and makes no reference to the possibility of an agreement involving both Community and Member State participation. As a result of this lacuna in the Treaty, it has fallen to the Commission, Council and the Member States, guided from time to time by the judgments of the European Court of Justice, to evolve their own rules of practice in this area. Whatever the nature of the agreement at issue, the first step in the negotiating process is for the Commission to bring forward a proposal for a negotiating mandate. It is common practice for the Commission to provide in its draft that the Commission should be granted negotiating authority for the whole of the agreement being contemplated, including in respect of matters falling within Member State competence. This inevitably triggers detailed negotiations in the relevant Council Working Groups as the Member States and the Commission seek to achieve their desired approach to the conduct of the future negotiations by the EU. Member States remain very reluctant to grant the Commission a negotiating role in respect of matters falling within Member State competence, either where shared or exclusive. That said, however, where the proposed agreement is a bilateral agreement with a third country, setting out a broad-ranging structure for bilateral relationships between the Community and the Member States and the third country concerned, Member States may be more willing to give the Commission a little more negotiating leeway than is the case in respect of negotiating mandates for multilateral conventions. Experience suggests that in respect of bilateral agreements, Member States are content to grant the Commission a negotiating mandate which covers areas both of exclusive Community competence and shared competence; but in respect of matters falling within their exclusive competence, Member States will normally either insist on retaining their own right to negotiate, or authorise the Presidency of the European Union acting with the Commission (sometimes accompanied by the High Representative) to undertake the negotiations on their behalf based on a pre-agreed position.1 In respect of multilateral negotiations, however, Member States normally limit the Commission’s mandate to the extent to which the European Community enjoys competence, and insist on retaining the right to negotiate in respect of the matters falling within their competence even though they may be prepared for an agreed common position (where it can be reached) to be presented on their behalf by the Presidency.2

1 Recent examples of where this formulation has been used are the mandate granted in relation to the proposed Association Agreement between the EU and the Ukraine, and the mandate granted in relation to the proposed Framework Agreement between the EU and Korea. 2 This approach was used by the Member States in the negotiations on the United Nations Convention on the protection and promotion of the rights and dignity of persons with disabilities.

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Ivan Smyth The importance of securing an appropriate negotiating mandate cannot be overstated. It is a truism that if the terms of the negotiating mandate are well defined and transparent, this serves to reduce considerably the risk of difficulties arising during the course of the ensuing negotiations. Accordingly, when approaching a proposal for a draft mandate in respect of a proposed agreement which touches on matters of Member State competence, some thought should be given to the following: — What is the nature of the agreement to be negotiated (bilateral, plurilateral or multilateral) and within what forum will it be negotiated? — What is the nature and extent of the Community’s competence for the proposed subject matter of the agreement?3 — In light of the division of competence for the proposed agreement, what is the desired division of responsibilities for the conduct of the negotiations? — Where negotiations on a proposed agreement are to take place within the framework of an international organisation, are there any restrictions or limitations on the Community’s ability to participate in the negotiations? Might special arrangements need to be agreed with the other members of the organisation to enable the Community both to participate in the negotiations in respect of matters within its competence and to conclude the final agreement?4 — Has the proposed agreement any implications for existing bilateral arrangements between the Member State and the third country concerned or its participation in an international body? — Will the proposed new agreement establish an institutional structure to administer its implementation and enforcement which might necessitate internal agreement within the EU on Community/Member State participation and coordination?5

3 This can only be a best guess at this stage in the process, as the final determination on the relative distribution of competence between the Community and the Member States for the proposed agreement can be determined only at the end of the negotiations. 4 It is not uncommon for special arrangements to have to be put in place to allow the Community to engage in negotiations in an international body. For example, within the framework of the Council of Europe, it is common for the Community to be permitted to engage in negotiations on draft Conventions and for the final text of the Convention to make specific provision (by inclusion of a regional economic integration organisation (REIO) clause) to enable the Community to conclude the final Convention in respect of matters within its competence. Similar issues arise in respect of the ability of the Community to participate in agreements to be negotiated within the framework of the International Maritime Organisation (IMO) and the International Civil Aviation Organisation (ICAO) where the European Community is not a member in its own right. 5 A good example of such an agreement is the Agreement establishing the World Trade Organisation (WTO) which established the WTO and a whole new dispute settlement process for the resolution of international trade disputes. This has necessitated Member States and the Community having to find means to ensure the effective participation of the EU both in the bodies established under the WTO framework and in trade disputes involving the EU, either in an offensive or a defensive role or as an interested third party.

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Mixity in Practice—A Member State Practitioner’s Perspective — Is the proposed agreement likely to touch upon matters of particular sensitivity for the Member State concerned?6 — Are there potential financial or legislative burdens that might result from participation in the agreement? If so, how significant might these be? Might primary legislation be required in order for the Member State to implement the elements of the agreement falling within its competence, or are there existing powers which could be invoked for this purpose? In respect of potential financial burdens, how might these be apportioned between the Community and the Member States?7 All of the above matters may be relevant to a Member State’s attitude towards proposed negotiations on an agreement. Obviously, however, the assessment cannot be an exact science, as the final content and shape of an agreement can be ascertained only once the negotiations have been finalised. As the nature and scope of mixed agreements being negotiated by the EU expand, there is an increasing number of actors within Member State administrations whose views need to be sought and taken into account.8 Some of these actors may have had limited prior exposure to the workings of the EU; they may require assistance to understand the difficult practices and procedures involved in the negotiation and conclusion of external agreements by the Community and Member States, and the implications for their own ability to act. It is imperative, therefore, that sufficient time is allocated both for internal consultation within a Member State’s administration and consideration of draft negotiating mandate texts. Failure to allow for this may lead to a more restrictive mandate being agreed than might otherwise be the case. It is necessary also to place proposed negotiations in a political context. Account must be taken of the need to keep the national parliament (and possibly sub-national bodies or assemblies) informed of developments. Within the United Kingdom, although the texts of negotiating mandates are not deposited with the United Kingdom’s Parliamentary Scrutiny Committees on EU legislation, the practice is for the lead Minister in question to write to the Scrutiny Committees informing them that agreement has been reached on a draft negotiating mandate

6 Member States’ attitudes differ in respect of what constitute areas of particular sensitivity. For the UK some areas of sensitivity are clearly defined by virtue of the UK’s particular position under the Treaty, eg the UK’s opt-in in respect of Title IV of the EC Treaty. Other sensitive issues are known by virtue of the position that Member States may have taken in cases before the European Court of Justice, eg Member States’ sensitivities in the area of the Community’s competence to set criminal penalties. 7 Obviously, it is easier to make an accurate assessment of potential financial and legislative burdens where the Community and the Member States are acceding to a pre-existing agreement or international organisation or body rather than engaged in negotiations on an entirely new agreement. 8 This is particularly the case as agreements stray into areas which have traditionally been the preserve of Member States’ foreign and security policies, such as matters relating to nuclear non-proliferation, matters relating to the International Criminal Court, judicial cooperation and mutual legal assistance, asylum and immigration policy, and counter-terrorism and the fight against crime.

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Ivan Smyth and to provide some reassurance that the UK’s desired policy objectives are addressed in the negotiating framework. The provision of regular information to a national parliament on the course and development of negotiations should assist in the smooth passage through that parliament of the necessary legislative measures, to ensure the conclusion of the final agreement by the European Community and by the Member State itself. One additional issue that arises for some, but not all, Member States in relation to mixed agreements concerns the possible application or extension of the final agreement to a Member State’s Overseas Countries and Territories. Care should be taken to consult the Overseas Territories where the Community and the Member States are contemplating participation in multilateral or plurilateral instruments of possible interest to the Overseas Territories as well. Given that the Overseas Territories listed in Annex II to the EC Treaty do not form part of the European Community, a Member State may need to make special arrangements to enable it to present positions in negotiations on behalf of matters of concern to some or all of its Overseas Territories, even though the Member State itself cannot speak on such an issue in its own right because it falls within the scope of the Community’s exclusive competence.9 Inevitably, with the expansion of the European Union to 27 Member States, pressure is mounting for the Member States to take a more flexible approach to negotiating mandates and to be willing to countenance granting the Commission sole negotiating rights, irrespective of the division of competence for the subject matter of the agreement. However, as demonstrated above, there are competing domestic interests which operate often to ensure that Member States insist on retaining responsibility for the direction of the negotiations in areas of their exclusive competence, albeit that this does not always necessitate their direct participation in the negotiations. As mentioned above, in some circumstances the Member States may be content to delegate authority to the Presidency to negotiate on their behalf. The key is to approach the mandate with an open frame of mind and with a willingness to be flexible. The ultimate goal is to find a formula which meets Member States’ wishes to retain control over matters within their competence whilst best suiting the circumstances surrounding the proposed agreement, and which maximises the effectiveness of the EU in the negotiations. Before leaving the question of the negotiating mandate, it is worth observing that the European Union has shown itself adept at designing/adopting mandates to best suit the circumstances of the negotiations at issue. In its economy of language, former Article 300 EC (new Article 218 TFEU) has aided this flexibility by not proscribing the precise form that a mandate must take.10 A diversity of

9 Attention should be paid to the content of Declaration 25 to the EC Treaty on the representation of the interests of the Overseas Countries and Territories referred to in Art 299 EC in this regard. 10 Former Art 300(1) EC, first sub-para, does not mention what form the authorisation from the Council should take. It states: ‘1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make

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Mixity in Practice—A Member State Practitioner’s Perspective practice has therefore developed within the EU as to the form of the negotiating mandate. Whereas a sui generis decision (without any legal base cited) adopted by the Council, normally by consensus, remains the most common form of mandate, a mandate may also be granted in the form of Council Conclusions. This flexibility is to be welcomed and remains important. It ensures that the Community and Member States can tailor the negotiating process to fit the specific circumstances of the agreement being negotiated. For example, in the ongoing negotiations within the framework of the WTO on the Doha Development Agenda, the Commission’s negotiating mandate is founded on a chain of Council Conclusions11 which have enabled the EU to respond flexibly to changes in the scope of the negotiations at various Ministerial and mini-Ministerial meetings of the WTO. There is considerable merit in the EU retaining this flexibility in determining the form and content of negotiating mandates, and avoiding an overly formulistic or procedural approach.

III.

THE CONDUCT OF THE NEGOTIATIONS AND THE ESTABLISHMENT OF AGREED POSITIONS WHEN NEGOTIATING MIXED AGREEMENTS

As with negotiating mandates, the Treaty is light on detail in respect of the rules applicable to the establishment of the position to be taken by the Community and Member States in negotiations on mixed agreements. There is no explicit mention of how such positions should be determined in Article 300 EC (new Article 218 TFEU).12 Nevertheless, the absence of specific treaty rules has not hampered the development of practical arrangements agreed by the Community and the Member States, which may vary from case to case but have in common some broad general rules. Subject to the specific terms of a particular mandate, the general rules that apply in practice are as follows: recommendations to the Council which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.’ 11 The Commission’s mandate in respect of the so-called Doha Development Agenda is set out in successive sets of Council Conclusions, starting with the Council Conclusions adopted on 26 October 1999 (Doc No 12092/99) which have been supplemented since by, inter alia, Council Conclusions dated 29 October 2001 (Doc No 13313/01), Council Conclusion dated 14 November 2001 (Doc No 14018/01), Council Conclusions dated 21 July 2003 (Doc No 11439/03) and Council Conclusions dated 8 December 2003 (Doc No 15804/03), 12 Former Art 300(2) EC refers to the procedure to be followed ‘for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement’. However, the text does not indicate how positions should be reached in terms of the negotiations of decisions not having legal effect and of a more political nature. The scope and meaning of Art 300(2) is an issue that the Court addressed in its judgment of 1 October 2009 in Case C-370/07 Commission v Council, nyr.

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Ivan Smyth a) Matters falling within the exclusive competence of the Community. The Council agrees a Community position based on a proposal from the Commission and in accordance with the voting procedure laid down in the Treaty applicable to the subject matter at issue. There is an obligation on the Member States to agree the Community position which normally is presented by the Commission.13 Member States are restricted to speaking in support of or to develop the Community position.14 If no position can be agreed then the Community and the Member States have to remain silent in the negotiations. b) Matters falling within the shared competence of the Community and the Member States. Normally arrangements are agreed between the Community and the Member States to cooperate in order to adopt a common position which preserves the unity of external representation of the Community and the Member States. However, unlike matters falling within the Community’s exclusive competence, the obligation on Member States to agree a common position is not mandatory but one of ‘best endeavours’. Who is responsible for presenting an agreed common position may vary. An informal practice has evolved that where the preponderance of competence for the matter lies with the Community then the Commission speaks, but where the preponderance of competence lies with the Member States then the Presidency speaks (the so called ’preponderance test’). Where no common position can be reached on a matter of shared competence then normally Member States speak on matters within their competence, provided that in so doing they do not intrude on the acquis communautaire. The Commission presents the position on behalf of the Community on matters within its exclusive competence and/or to the extent necessary to defend the Community acquis. c) Matters falling within Member States’ exclusive competence. The Member States should seek to reach a coordinated position to be presented in the negotiations either individually or on their behalf by the Presidency. There is no binding obligation on Member States to reach a coordinated position but the reality is that it may be in their interests to do so in order to present a united front in the negotiations. Where a coordinated position is reached, it should be supported in good faith by individual Member States. If a coordinated position cannot be reached then Member States retain the

13 Where for any reason the Commission cannot participate in the negotiations, the Community position may be presented by the Presidency of the Council or by a nominated Member State, or all the Member States may speak to the agreed position but must not deviate therefrom. 14 Exceptionally provision may be made for the Member States to take the floor on a matter falling within the Community’s exclusive competence to provide information and reporting on national measures of implementation. Such a provision was provided for in the informal Code of Conduct applicable to the implementation of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

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Mixity in Practice—A Member State Practitioner’s Perspective right to speak and vote in accordance with their national interests, but in so doing must not contravene the Community acquis. The scenarios set out above are the broad general rules applicable to mixed agreements, but there is nothing to prevent Member States and the Community agreeing on other variations tailored to address negotiations on a particular agreement or in a particular international forum. Indeed, the procedures for establishing and presenting agreed positions in negotiations have become a fruitful area for development in recent years.15 Clearly there are advantages to be derived from uniformity of representation of the Community and the Member States in international negotiations, and in finding solutions which respect the duty of loyal cooperation required of the Commission and the Member States under former Article 10 EC (replaced in substance by Article 4(3) TEU). In respect of bilateral agreements entered into by the EU with third countries, the procedures to be followed to establish the EU position are pretty well understood and for the most part uncontentious. Establishing the position to be taken in a multilateral organisation can be more complex and diverse, not just because of the desire on the part of Member States to retain their influence in international bodies of which they are members, but also because of the attitude of other members of the organisation towards the EU. Within this context there has been a trend towards the development of informal ’Codes of Conduct’ to govern the handling of EU business within a particular organisation or negotiation. A good example is the Arrangement between the Council and the Commission regarding preparation for Codex Alimentarius Meetings and statements and exercise of voting rights.16 Clearly there are advantages to be had from setting out broad parameters governing how responsibilities should be apportioned between the Community and the Member States. However, any arrangement should avoid being overly prescriptive and must take account of the practical realities of negotiations in international bodies. Often decisions may need to be taken within very short timeframes where recourse back to Brussels machinery is not a realistic prospect, so writing in paragraphs which provide for referral of a matter back to COREPER for a decision is unhelpful.17 Similarly, in practice, it may not be possible to reach 15 In recent years the Commission and the Council have agreed informal arrangements for coordination of EU positions under several international agreements/international bodies such as the World Customs Organisation, the World Health Organisation, Codex Alimentarius and the UN Convention on the Protection and Promotion of the Diversity of Cultural Expressions 16 See Annex III to Council Decision (2003/822/EC) of 17 November 2003 on the accession of the European Community to the Codex Alimentarius Commission [2003] OJ L/309/18. 17 Such a provision exists in the informal Code of Conduct between the Council, the Member States and the Commission for the participation of the Community and its Member States in meetings regarding the implementation of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions at Art 8(c). The Guidelines for Ensuring Community Coordination in the World Customs Organisation also contain a requirement for disagreements between the Commission and the Member States, such as disagreement on the attribution of competence, to be referred to COREPER, but only where time allows (para 13).

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Ivan Smyth a definitive view on where responsibility lies for a particular topic between the Community and the Member States, and pragmatic solutions may have to be worked up sur place during the negotiations. In such circumstances, in order to preserve its effectiveness on the international stage, the EU needs to be able to react flexibly. Lastly, it has been suggested in some quarters that the only means by which the EU can play an effective role in an international organisation is to ensure that the Union becomes a member thereof. This is most often voiced in respect of some significant international organisations, in particular the IMO and ICAO. In support of this argument some commentators have pointed to the judgment of the Court in Kramer18 and argued that Article 10 EC (replaced in substance by Article 4(3) TEU) requires the Council to authorise the Commission to conduct accession negotiations, in the name of the Community, under Article 300(1) EC (new Article 218(3) TFEU). I disagree with this assertion. Council authorisation of negotiations under Article 300(1) EC (new Article 218(3) TFEU) is an act with major consequences for the Community not only internally but externally too. An application for Community membership—particularly of an organisation which does not currently grant membership to supranational bodies—makes a significant call on the time and resources not only of the Community but also of the existing members of the organisation itself.19 It is not simply that there would be contentious technical issues to resolve, such as the apportionment of voting rights between the Community and Member States, which could divert the membership from its other work; other members of the organisation may not relish the prospect of Community membership and may have strong—and not necessarily favourable—views. The Council may take the view, in a given situation, that to authorise accession negotiations would not be the best way to maximise Community influence in the organisation concerned and may indeed be counter-productive. Furthermore, it is not the function of Article 10 EC (replaced by Article 4(3) TEU) to destroy the institutional balance that is laid down in the EC Treaty. Article 300 EC grants the Council a discretion as to whether the Commission should be authorised to open negotiations, a discretion to be exercised in all the circumstances. If former Article 10 EC required the Member States, through the Council, to authorise negotiations in every case, that discretion would be removed. So would the constitutional safeguard that the discretion represents. This would exceed the proper scope of the duty of loyal cooperation. Experience to date in bodies such as the IMO and ICAO is that the Community’s interests have more than adequately been presented and protected by the Member States acting in accordance with an agreed Community position or through the Presidency of the Council. There has been no suggestion that the

18 19

Joined Cases 3, 4 and 6–76 Kramer [1976] ECR I-1279, esp paras 43–45. Eg, the IMO currently has 168 Member States.

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Mixity in Practice—A Member State Practitioner’s Perspective Community’s interests have been prejudiced or handicapped by the inability of the Commission to act as the Community’s negotiator. In any event, in most cases, the Commission will attend the negotiations either as part of the Presidency delegation or as an observer. Furthermore, if the Commission considers that a Member State has acted in breach of its obligations under the EC Treaty, it always has the option of launching infraction proceedings under Article 258 TFEU (ex Article 226 EC).20 In short, Community membership of an international organisation should not be considered as a panacea—other mechanisms for coordination and presentation of EU positions may be equally, if not more, effective.

IV.

SIGNATURE OF MIXED AGREEMENTS AND PROVISIONAL APPLICATION

By and large the signature stage of mixed agreements does not present many difficulties for the European Community and the Member States. In most cases the Community and the Member States signs the agreement at the same time, although this is a matter of practice rather than a legal necessity. The Presidency is authorised to designate the person empowered to sign the agreement for the Community by means of a prior Decision adopted by the Council pursuant to Article 300(2) EC, first sub-paragraph (new Article 218 (5) TFEU). The Council Decision on signature is the first time that a determination of the legal base applicable to the agreement is to be made. This requires careful scrutiny by Member States to ensure that it correctly identifies all the necessary Treaty provisions and that the agreement is properly classified. Importantly, the choice of legal base determines whether the Council Decision requires the Council to act by qualified majority voting or by unanimity. Sometimes, where the agreement at issue permits, the Council Decision on signature may also provide for the provisional application of the agreement by the Community.21 This is specifically provided for in the text of former Article 300(2) EC. The extent to which the agreement is provisionally applied is, however, sometimes misunderstood. Where the relevant Council Decision provides for provisional application, then this can relate only to the elements of the agreement which fall within the Community’s competence. The Council Decision cannot bind the Member States to apply the agreement provisionally in respect of the matters falling within their exclusive competence, although sometimes a recital in the Council Decision may indicate Member States’ intention to

20 Indeed the Commission has demonstrated that it is not shy about resorting to this option. See Case C-45/07 Commission v Greece, judgment of 12 February 2009, nyr; and Case C-246/07 Commission v Sweden (pending); the Opinion of AG Maduro was delivered on 1st October 2009. 21 Eg, see Council Decision 2007/648/EC on the signing on behalf of the European Community, and provisional application of the International Tropical Timber Agreement 2006 [2007] OJ L/262/6.

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Ivan Smyth do so in respect of the matters within their competences.22 This may give rise to some uncertainty, particularly on the part of other Contracting States, as to the extent to which the agreement is being provisionally applied by the Community and the Member States. There are two ways of avoiding this uncertainty. The first is for the elements of the mixed agreement falling within the Community’s exclusive competence to be placed into an interim agreement which can be approved by the Council at the same time as signature of the main agreement.23 This allows for such provisions to enter into force immediately. This is an approach commonly used by the Community to give effect to the trade/tariff elements of mixed agreements which it enters into with third countries. Once the entire agreement has been ratified by the Member States and concluded by the Community, the interim agreement will terminate. This has the advantage of legal certainty. The extent to which the provisions of an agreement are being applied pending ratification and conclusion by the Member States and the Community of the full agreement is clearly set out in the provisions of the interim agreement. That said, however, the interim agreement approach may not be suitable for all types of agreement, and its use tends to be limited to mixed agreements containing a large trade component.24 An alternative approach is for a clause to be included in the agreement which provides expressly for provisional application of some of its provisions by the Parties. The Council Decision on signature and provisional application may then include a provision listing the clauses of the agreement which the Community may apply on a provisional basis pending the entry into force of the agreement.25 In practice this approach is likely to be limited to bilateral agreements entered into by the Community with third countries. Nevertheless, the practice of including a specific provision in the Council Decision on signature and provisional application which lists the clauses in the agreement which the Community

22 Eg, Recital 6 of Council Decision 2007/648/EC, above n 21, states: ‘All the Member States have expressed their intention to sign, and to contribute as appropriate towards the provisional application of the 2006 Agreement.’ 23 See, eg, Euro-Mediterranean Interim Association Agreement on trade and cooperation between the European Community, of the one part, and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part—Protocol 1 on the arrangements applying to imports into the Community of agricultural products originating in the West Bank and the Gaza Strip—Protocol 2 on the arrangements applying to imports into the West Bank and the Gaza Strip of agricultural products originating in the Community—Protocol 3 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation—Final Act—Joint Declarations—Declaration by the European Community, [1997] OJ L/187/3. 24 Eg, see the Interim Agreement on trade and trade-related matters between the European Community and Bosnia and Herzegovina which gives effect to the trade provisions in the EU/Bosnia and Herzegovina Stabilisation and Association Agreement, [2006] OJ L/169/13. 25 This approach has recently been proposed in relation to the Euro-Mediterranean Association Agreement between the European Community and its Member States and Syria.

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Mixity in Practice—A Member State Practitioner’s Perspective intends to apply on a provisional basis, could be tailored to cover other sorts of agreement, and the Commission should be encouraged to take this approach when drafting its proposals.

V.

CONCLUSION OF AGREEMENTS AND DECLARATIONS OF COMPETENCE

One of the most problematic areas for the conduct of EU external relations remains the conclusion and entry into force of mixed agreements. There is a difficult balance to be struck between the desire of the Commission to ensure that agreements entered into by the Community can be brought into force quickly and the need for Member States to submit international agreements to which they wish to be a Party to their national ratification procedures. It is accepted that the consequence of an agreement being classified as a mixed agreement is that lengthy delays can occur before its entry into force. This is particularly so with the increase in number of Member States to 27. Whilst the Member States may be willing and able to modify their internal procedures to allow for fast-track procedures for ratification of international agreements, this is for the Member States themselves to resolve rather than to be dictated by the EU Institutions. Practice in relation to the conclusion of mixed agreements by the Community and the Member States has evolved over time, and has been influenced not only by internal events and judgments of the European Court of Justice but also by developments at the international level, in particular the growing acceptance internationally that the European Community should become a Party to international agreements in its own right in respect of matters falling within its competence and the introduction of provisions in international agreements requiring Regional Economic Organisations to submit declarations of competence when becoming Parties. As with other procedural stages, the Treaty rules applicable to the conclusion of agreements by the Community are set down in Article 300 EC (new Article 218 TFEU). Again the rules applicable, although more developed than in regard to some of the earlier stages in the process, are sparse and do not outline the precise processes to be followed when dealing with a mixed agreement. The emphasis in the Treaty is placed on the voting procedure applicable in the Council and when the assent of the European Parliament will be required. Nothing is said in relation to how the Community and the Member States should coordinate their procedures. In the absence of any specific rules or guidance in the Treaty, the Community and Member States have largely developed their own practice in this area. A Council Decision on conclusion of a mixed agreement by the Community based on a proposal from the Commission is required. The Council Decision assigns authority to the Commission, the Presidency or both, to communicate the Community’s approval of the agreement to the other Parties thereto, by 315

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Ivan Smyth arranging for deposit of the instrument of approval with the depositary or otherwise, as provided for in the agreement. Particular attention needs to be paid to the text of a proposed Council Decision on conclusion and the legal bases cited therein. The legal base proposed sets out the Commission’s thinking on where the Community’s competence is derived from in the Treaty for the agreement. This requires detailed examination to ensure that it accords with Member States’ own assessment of the position. It is not unusual for disagreements to arise between the Commission and the Member States on the choice of legal base. Frequently this has required recourse to the European Court of Justice for resolution either by means of a request for an opinion under the procedure set down in former Article 300(6) EC (new Article 218(11) TFEU), or by means of a direct challenge by the Commission to the Council’s action under former Article 230 EC (new Article 263 TFEU).26 The choice of legal base is also significant in determining the role which the European Parliament plays in the final approval of the agreement by the Community. The European Parliament guards its prerogatives jealously, and is be quick to challenge the Council where it considers its position to be undermined.27 Prescriptive provisions calling on Member States to complete their ratification of an international agreement within a fixed timeframe should be avoided in a Council Decision on conclusion.28 Attempts by the Commission to include such clauses are normally resisted by Member States. Similarly, particular care should be taken when considering any provisions in a draft Council Decision which purport to set down rules for coordination of EU positions in bodies established under the agreement being concluded, or to propose procedures for EU proposals to amend to the agreement. Member States are sensitive to such provisions intruding on their right to take action in respect of matters falling within their exclusive competence.29 It is important that any provisions on amendments are strictly limited in scope to matters falling within the Community’s competence. 26 Examples are Opinion 1/94 (WTO) [1994] ECR I-5267, Opinion 2/00 (Cartagena Protocol) [2001] ECR I-9713, Opinion 1/03 (Lugano Convention) [2006] ECR I-1145, and in the Open Skies judgments such as Case C-467/98 Commission v Denmark [2002] ECR I-9519. 27 See, eg, Case C-566/08 European Parliament v Council [2009] OJ C/44/37, currently before the Court. 28 There are, however, examples of where such a clause has been included. See Art 2 of Council Decision 2007/431/EC of 7 June 2007 authorising Member States to ratify, in the interests of the European Community, the Maritime Labour Convention 2006 of the International Labour Organisation, [2007] OJ L/161/63: ‘Member States should make efforts to take the necessary steps to deposit their instruments of ratification of the Convention with the Director-General of the International Labour Office as soon as possible, preferably before 31 December 2010. The Council will review the progress of the ratification before January 2010.’ 29 For the UK and Ireland an additional complication arises where the agreement in question relates to matters falling within the scope of Title IV of the EC Treaty. In such cases the proposed Council Decision on conclusion by the Community of the agreement needs to clarify whether the UK and Ireland have exercised their opt-in in respect of the provisions of the agreement falling within Title IV of the EC Treaty. This is achieved by including an appropriate recital in the text of the Council Decision. Eg, Council Decision 2007/820/EC on the conclusion of an agreement between the European Community and Bosnia and Herzegovina on the re-admission of persons residing without

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Mixity in Practice—A Member State Practitioner’s Perspective Negotiations on Council Decisions on conclusion can be complicated where the agreement in question requires the deposit by the Community and the Member States of a declaration of competence.30 A declaration of competence is supposed to provide guidance for the other parties to an international agreement on the relative distribution of responsibilities between the Community and the Member States for the subject matter of the agreement.31 The instances where the Community and Member States are being requested to deposit such declarations alongside their instruments of approval/ratification are increasingly frequent.32 No provision is made in the Treaty for their preparation and adoption, so internal EU practice has had to evolve in response to the demand from other Contracting Parties to furnish them. There has been a considerable variety in the style and detail of the declarations produced. Some have been very broad-brush statements33 on the division of competence, whilst others, such as the EU Declaration of Competence in respect of the 1982 Law of the Sea Convention,34 run to several pages in length and set out not just the principal Treaty articles under which the Community is acting, but long lists of secondary legislation adopted by the Community from which it is claimed its external competence flows. The internal negotiation of the declaration occurs in tandem with the negotiations on the draft Council Decision on conclusion. It can be a fraught and time-consuming affair, requiring detailed examination of the text and a careful

authorization, [2007] OJ L/334/65, provides at Recital 5: ’In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom has notified its wish to take part in the adoption and application of the Decision.’ 30 An example of this is to be found in Art 3 of the Hague Statute relating to the Hague Conference on Private International Law. Art 3(3) states: ‘Each Regional Economic Integration Organisation applying for membership shall, at the time of such application, submit a declaration of competence specifying the matters in respect of which competence has been transferred to it by its Member States.’ 31 It is of course not only the other Contracting Parties to an agreement who might find recourse to the declaration of competence informative as to the respective division of competence between the Community and the Member States, as the Court demonstrated in its judgment in Case C-459/03 Commission v Ireland [2006] ECR I-4635. 32 Recent examples are to be seen in Annex II to Council Decision 2004/579/EC of 29 April 2004 on the conclusion on behalf of the European Community of the United Nations Convention against Transnational Organised Crime; Annex II to Council Decision 2006/179/EC of 5 October on the accession of the Community to the Hague Conference on Private International Law, [2006] OJ L/297/1; and Annex 1(b) to 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 L/201/15. 33 See, eg, the declaration of competence submitted by the European Community in respect of the United Nations Framework Convention on Climate Change, [1994] OJ L/33/13; and the Declaration of Competence submitted by the European Community in relation to the Convention on the protection and use of transboundary watercourses and international lakes, [1995] OJ L/186/44. 34 See the text of the declaration of competence attached to Council Decision 98/392/EC of 23 March 1998 concerning the conclusion by the European Community of the United Nations Convention of 10 December 1982 on the Law of the Sea and the Agreement of 28 July 1994 relating to the implementation of Part XI thereof, [1998] OJ L/179/1.

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Ivan Smyth analysis of the nature and origin of the Community’s competence as set down in the draft produced by the Commission. It is imperative that Member States are accorded sufficient time to consider what is being proposed. Inevitably, there will be a tendency on the part of the Commission initially to overstate the extent of the Community’s exclusive competence, and a similar reluctance on the part of Member States to concede that Community competence exists in some circumstances. Needless to say, there is always going to be some degree of horse-trading involved in such a complex exercise, and the apportioning of competence is never going to be an exact science. However, the key remains to approach negotiations on declarations with an open mind and in a spirit of mutual cooperation. Lastly, it should be noted that declarations are not fixed in time. They are living instruments and needs to be updated as the relative distribution of competences between the Community and the Member States shifts. This may occur in particular where the adoption of further internal instruments by the Community leads to an increase in the Community’s exclusive external competence, or where there is a change in competence introduced by changes to the Treaty. Increasingly, international agreements place an obligation on the Community and the Member States to furnish updated information where the division of competence changes,35 and to assist any party which raises a query on where competence lies for a particular measure in an agreement.36 VI.

CONCLUSION

Practice in respect of the conduct by the Community and the Member States of negotiations on and the conclusion of mixed agreements is in a constant state of evolution. The continued expansion of the EU poses some significant challenges for the effective participation and representation of the EU in international bodies and the entry into force of agreements. However, these challenges must not be used as an excuse to usurp the role of Member States, or to ignore their competence in certain matters. Harmony will best be achieved by recognising Member States’ sensitivities in relation to the conduct of international relations, 35 See, eg, Art 3(4) and (6) of the Statute to the Hague Conference on Private International Law which require: ‘4. Each Member Organisation and its Member States shall ensure that any change regarding the competence of the Member Organisation or in its membership shall be notified to the Secretary General, who shall circulate such information to the other Members of the Conference. … 6. Any Member of the Conference may request the Member Organisation and its Member States to provide information on whether the Member Organisation has competence in respect of any specific question which is before the Conference. The Member Organisation and its Member States shall ensure that this information is provided on such request.’ 36 Increasingly the declaration furnished by the EU notes that the division of competence between the Community and the Member States may change, and includes an undertaking to update the text where this occurs. Eg, the declaration furnished by the EU in respect of the United Nations Convention Against Corruption provides (at para 4): ‘The scope and exercise of Community competence are, by their nature, subject to continuous development and the Community will complete or amend this declaration, if necessary, in accordance with Article 67(3).’

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Mixity in Practice—A Member State Practitioner’s Perspective and their need to answer to and secure the support of their domestic parliaments in respect of international agreements entered into by the EU. It is true that matters relating to the external competence of the Union and the obligations that the Treaty places on both Member States and the Commission are not always free from conflict. Indeed this has been a fruitful area of work for the Court and will no doubt continue to be so. However, rarely are conflicts irresolvable. In many cases practical/pragmatic solutions have been found which balance the respective positions of the Community and the Member States, and which are flexible enough to evolve to meet the new challenges posed by the proliferation of multilateral and bilateral instruments. This ability of the EU to respond to new challenges and to adopt new, flexible approaches, despite the absence of detailed rules in the Treaty, should be regarded as testimony to its success in this sphere. The EU should continue to avoid overly procedural and formalistic approaches to mixed agreements. Whilst recognising that there is already a wealth of good practice, Member States and the Commission should continue to work together to develop optimal arrangements for the negotiation and conclusion of mixed agreements which are tailored to the particular circumstances at issue, and which enable the EU to play an effective role on the international stage whilst respecting the internal division of competence between the EU and the Member States. The Commission must recognise the significant role Member States can often play in international negotiations where they possess a wealth of technical and specialist experience which can be drawn on. Similarly, Member States should approach international negotiations involving the Union with less suspicion and in a spirit of openness and cooperation. The key common objective must be to maximise the effectiveness of the EU on the external plane.

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16 Mixity Seen from Outside the EU but Inside the Internal Market HENRIK BULL

I.

INTRODUCTION

T

OGETHER WITH ITS EFTA1 partners Iceland, Liechtenstein and Switzerland, Norway finds itself in a unique position, ie as a non-Member of the EU but still intimately integrated into the EU both economically and politically. The legal expression of this is an ever-expanding web of agreements between the EFTA States and the EC/EU. For Norway, Iceland and Liechtenstein, by far the most important agreement is the Agreement on the European Economic Area (the ‘EEA Agreement’).2 This agreement links these three States to the EU internal market,3 with the exception

1

European Free Trade Association. Or the ‘Oporto Agreement’, signed in Oporto on 2 May 1992, in force from 1 January 1994. 3 Austria, Finland and Sweden had one year in the EEA as EFTA States before joining the EU on 1 January 1995. Switzerland took part in the negotiations, but a referendum produced a majority against joining the EEA. Switzerland later negotiated its own set of agreements covering Swiss participation in several aspects of the internal market. Seven agreements were signed 21 June 1999 and entered into force on 1 June 2002. They cover free movement of persons, public procurement, land and air transport, agriculture, research, and mutual recognition of conformity assessment. When EU expansion took place on 1 May 2004, these agreements, with the exception of the agreement on free movement of persons, automatically applied to the new EU Member States. The gradual introduction of free movement of persons in relation to the new EU Member States is governed by an additional protocol to the agreement on the free movement of persons. This protocol has been in effect since 1 April 2006. Together with the EC–Switzerland Free Trade Agreement of 1972 and the Insurance Agreement of 1989, they form the basis for bilateral relations. A second set of bilateral agreements was concluded in 2004. This covers the following sectors: taxation of savings, participation in Schengen and Dublin cooperation, judicial and administrative cooperation in the fight against fraud, trade in processed agricultural products, participation in the European Environment Agency, statistical cooperation, participation in the Media programme, preparations for participation in future programmes in the fields of education, youth and training, and avoidance of double taxation of retired EU officials. The agreements under the 2004 package entered into effect at different stages between 2004 and 2009. 2

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Mixity Seen from Outside EU but Inside Internal Market of the customs union, agriculture and fisheries, to give a short and necessarily somewhat inaccurate description.4 Quite a few of the agreements between Norway and the EC or EU are formally multilateral, as they are entered into by two or more EFTA States on the EFTA side. However, from a practical point of view, they tend to function as bilateral agreements, in the sense that that they function as agreements between two blocs—the EU and the three States on the EFTA side. Under the EEA Agreement, this bilateral trait is further enhanced by the rule that the EFTA States shall speak ‘with one voice’ when decisions are made in the EEA Joint Committee, which is the most important decision-making body under the Agreement.5 As there is no rule providing for majority voting in EFTA for this purpose, the principle of ‘one voice’ in reality means that the EFTA State which is opposed to the proposed decision will decide the EFTA position. Furthermore, the purpose of the agreements is usually to associate the EFTA States as closely as possible with EU legislation and policies in the relevant fields. Therefore, they tend to function as ‘one-way streets’, in the sense that the EFTA States accept as part of their agreements whatever relevant legal acts have been enacted by the EU (or previously the EC) in the field in question. The agreements provide for consultation procedures, but the reality is that when the EU side has decided upon a course of action, the EFTA States have no choice but to accept this as part of their agreement too, if they are to avoid unpleasant consequences in the form of suspension of parts6 or the whole7 of the agreement. Therefore, to date, there has been no precedent of EFTA States formally refusing to accept a relevant new legal act as part of their agreements. At best, they have managed to postpone controversial decisions for a while.8

4 See Art 8(2) EEA, which provides that the rules on free movement of goods, with certain peripheral exceptions, only apply to goods originating in the Contracting Parties, and Art 8(3) EEA which specifies that, as a main rule, the Agreement only applies to products falling within chs 25 to 97 of the Harmonized Commodity and Coding System, thus excluding fish and agricultural products. 5 See Art 93 EEA. 6 See Art 102 EEA. New EU legal acts are made part of the EEA Agreement by listing them in the annexes to the Agreement. In case the EFTA States are not in a position to agree to the inclusion of a new act, ‘the affected part’ of the relevant annex will be ‘suspended’. It is not clear exactly what this means. It would have to be assessed in each individual case, and depends on the content of the legal act to which the EFTA States have objected. 7 See, eg, Art 8(4) of the Agreement of 18 May 1999 concluded by the Council of the European Union and Iceland and Norway concerning the latter’s association with the implementation, application and development of the Schengen acquis, [1999] OJ L/176/36. 8 One example is Directive 98/44/EC on the legal protection of biotechnological inventions, [1998] OJ L/213/13 which was made part of the EEA Agreement only by Decision 20/2003 of the EEA Joint Committee, [2003] OJ L/94/82. The Directive was controversial in Norway, and the Norwegian Government dragged its feet for as long as it could; see F Sejersted, F Arnesen, O-A Rognstad, S Foyn, and O Kolstad, EØS-rett, 2nd ed (Oslo, Universitetsforlaget, 2004) 183. See also section V. below on the incorporation into the EEA Agreement of Directive 2044/38/EC on the free movement of European citizens.

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Henrik Bull II.

AN OVERVIEW

Already pre-dating the EEA Agreement, the Lugano Convention is a special case. The EFTA States, this time including Switzerland but excluding Liechtenstein, in 1988 entered into the Lugano Convention as a ‘parallel convention’ to the 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters. The Lugano Convention of 1988 only involved the EC Member States, not the EC as such, as Contracting Parties on the EC side. The Convention is now being replaced by a revised Lugano Convention.9 It is interesting testimony to the institutional development within the EU that, this time, the Member States are not Contracting Parties on the EU side, as the subject matter was deemed to fall within the exclusive competence of the EC.10 There are negotiations going on concerning a similar arrangement with regard to the taking of evidence and service of documents.11 After the EEA Agreement entered into force, an agreement associating Norway and Iceland with the ‘Schengen cooperation’ was negotiated.12 The original rationale for entering into this agreement on the Norwegian side was the preservation of the Nordic free travel zone dating from the 1950s, which, with Denmark, Finland and Sweden now within the EU, could only be achieved by Norway and Iceland associating themselves with the Schengen cooperation at the same time as the Nordic EU Member States became full Members.13 Soon,

9 The revised Lugano Convention, done on 20 October 2007, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The revision will align the Lugano Convention with Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2007] OJ L/339/3. Due to its ‘Maastricht opt-out’, Denmark participates as a Contracting Party in its own right to the new Convention. The UK and Ireland, with their own ‘Maastricht opt-outs’ different from that of Denmark, have ‘opted in’ and as a consequence, the Convention applies to them by virtue of having been ratified by the EC on 18 May 2009. The revised convention entered into force between the EU, Denmark and Norway on 1 January 2010. Swiss and Icelandic ratifications had still not taken place. 10 See Opinion 1/03 (Lugano Convention) [2006] ECR I-1145. 11 Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L/174/1; and Regulation (EC) No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [2000] OJ L/160/37. 12 Agreement concluded by the Council of the European Union and Iceland and Norway concerning the association of the latter with the implementation, application and development of the Schengen acquis, dated 18 May 1999, [1999] OJ L/176/36. There is also an Agreement concluded by the Council of the European Union and Iceland and Norway on the establishment of rights and obligations between Ireland and the United Kingdom of Great Britain and Northern Ireland, on the one hand, and Iceland and Norway, on the other, in areas of the Schengen acquis which apply to these States, dated 30 June 1999, [2000] OJ L/15/2. 13 A common Nordic labour market was established by an Agreement of 22 May 1954. A Protocol signed on the same day exempted Nordic citizens from carrying passports when travelling in another Nordic State, and from obtaining residence permits while resident in another Nordic State. The Nordic Passport Control Convention of 12 July 1957 abolished mandatory passport controls of third State citizens—only spot-checks were to be carried out—and laid down rules for control at external borders. The Protocol and the Convention are usually referred to as the ‘Nordic Passport Union’.

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Mixity Seen from Outside EU but Inside Internal Market however, participation in police cooperation and cooperation on asylum matters moved to the forefront as motivating factors, although these to some extent are still politically controversial issues. This is demonstrated by several other agreements which are linked to the Schengen cooperation: from 2000, there is the Agreement between Norway and the European Community on the participation of Norway in the work of the European Monitoring Center for Drugs and Drug Addiction14; in 2001, Norway entered into an agreement directly with the European Police Unit (Europol)15; and in 2005, a similar agreement was entered into directly with Eurojust.16 There are also agreements between the European Union and Norway and Iceland on mutual assistance in criminal matters17 and on the European arrest warrant,18 but the latter agreement has not yet entered into force. An agreement concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway dates from 2005,19 and in 2007 an agreement was entered into on the modalities of the participation by Norway and Iceland in The European Agency for the management of operational cooperation at the external borders of the Member States of the European Union.20 There are also several agreements on participation in operations relating to the EU’s Common Foreign and Security Policy. In 2001, Norway entered into an

Originally, only Norway, Denmark, Finland and Sweden took part. Iceland acceded to the Protocol in 1955, and to the Convention in 1965. The Nordic Passport Union is generally though of as one of the main achievements of Nordic cooperation, and as symbol of the mutual trust and friendship which has come to exist between the Nordic nations. Although the rules concerning free travel across internal borders and coordination of external border controls have now, for all practical purposes, been supplanted by Schengen rules, Nordic citizens are still exempt, under the 1954 Convention, from obtaining residence permits when taking up residence in other Nordic States. On this point, Nordic cooperation is still closer than EU cooperation in the field of free movement of persons. 14 Dated 19 October 2000. 15 Agreement between Norway and the European Police Office, dated 28 June 2001, not in the OJ; see (accessed 21 January 2009). 16 Agreement between Norway and Eurojust, dated 28 April 2005, not in the OJ; see (accessed 21 January 2009). 17 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the application of certain provisions of the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union and the 2001 Protocol thereto, [2004] OJ L/26/3. 18 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on the surrender procedure between the Member States of the European Union and Iceland and Norway, signed 28 June 2006, [2006] OJ L/292/2. 19 Agreement between the European Community and Iceland and Norway concerning the criteria and mechanisms for establishing the state responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway, signed 19 January 2001, [2001] OJ L/93/40, and a Protocol thereto, concerning the relationship to Denmark, signed 29 June 2005, [2006] OJ L/57/16. 20 Signed 1 February 2007, [2007] OJ L/188/19 (not yet in force).

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Henrik Bull agreement with the EU on the European Satellite Centre.21 Dating from 2004, there is an agreement on the exchange of classified information,22 a framework agreement on Norwegian participation in EU operations23 and agreements relating to actual participation in individual operations.24 The most remarkable thing about this—something which speaks volumes about the development of the EU in the last 15 years—is that, with the exception of the EEA Agreement, none of these agreements is mixed. On the EU side, they have either the European Community or the Council of the European Union as the Contracting Party. However, as we shall see, agreements with the Council of the European Union entail many of the same problems as mixed agreements— and then some. III.

THE EEA AGREEMENT: UNPROBLEMATIC MIXITY?

It was only very late in the day that it became clear that the EEA Agreement would be a mixed agreement. Vis-à-vis the EFTA States, this question was left open by the EC side for as long as possible during the negotiations. Also, after it had become clear that the Agreement would be mixed, the Commission took great care in organising the negotiations in such a way that the Member States would have minimum influence. For instance, many sub-groups which were set up to hammer out the solutions in relation to particular problems were termed ‘experts groups’, as this, according to what the Commission told the EFTA States, would mean that the Member States had no right to participate. This even applied to the drafting committee set up to transform the results of the negotiations into treaty text. This author cannot remember that the EFTA States, either individually or together, expressed any preferences with regard to the question of mixity or non-mixity, and it would not have mattered much if they had.25 However, from the point of view of national politics, the EEA Agreement as a mixed agreement was in all likelihood in the political interest of the EFTA States at the time of conclusion of the Agreement. The EEA Agreement was quite controversial in 21 Agreement of 19 December 2001 between Norway and the European Union, not in the OJ, based on Council Joint Action of 20 July 2001 on the establishment of a European Union Satellite Centre, [2001] OJ L/200/5. 22 Agreement of 22 November 2004 between Norway and the European Union on security procedures for the exchange of classified information, [2004] OJ L/362/29. 23 Agreement between Norway and the European Union establishing a framework for the participation of Norway in the European Union crisis management operations, signed 3 December 2004, [2005] OJ L/67/8. 24 Such as the Agreement of 19 December 2002 between the European Union and Norway on the participation of Norway in the European Union Police Mission (EUPM) in Bosnia and Herzegovina, [2003] OJ L/239/32; and the Agreement of 9 September 2004 between Norway and the European Union on the participation of Norway in the European Union Police Mission in the former Yugoslav Republic of Macedonia, [2004] OJ L/354/86. 25 The author took part in the negotiations for the EEA Agreement.

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Mixity Seen from Outside EU but Inside Internal Market many of the EFTA States, and remains so to this day, perhaps particularly in Norway. As will be remembered, Switzerland, which took part in the negotiations, did not join because of a negative referendum. Part of the problem was—as it is with possible future EU membership—the perception of the Agreement as a deal between un-equals: the ‘big’ EC and the ‘small’ EFTA States. This perception is easy to understand. After all, the purpose of the Agreement was to make the EFTA States part of the Community’s internal market. However, having not only the EC but all the Member States appearing on the front page as Contracting Parties together with the EFTA States, gave the impression that the Agreement was more of a grand multilateral agreement between equals than the de facto bilateral ‘one-way street’ agreement that it really is. As is normally the case with mixed agreements, the EEA Agreement does not specify the parts of the Agreement for which the Member States enjoy competence. This did not raise much concern during the negotiations. To the extent that the Agreement incorporates Norway, Iceland and Liechtenstein into the internal market by making internal market rules (both primary law and secondary law provisions) applicable to the three States by a method which is best described as ‘carbon copying’, most of the Agreement would presumably fall under exclusive Community competence. This also applies to the decisions of the EEA Joint Committee, which is primarily concerned with making new EU legal acts part of the EEA Agreement. Consequently, in the day-to-day administration and development of the Agreement, the EFTA States only deal with the Commission. In the EEA Joint Committee, the EU is almost always represented by the Commission alone, although all Contracting Parties have the right to be represented there.26 Sometimes one or two Member States may show up to listen to the discussion of a topic of particular interest to them, but that is all. However, there are parts of the EEA Agreement which do not simply copy Community provisions relating to the internal market. A ‘Financial Mechanism’ is laid down in Protocol 38a to the EEA Agreement. Put simply, this is the EFTA membership fee for the internal market. In the wake of the enlargements of the EU, and subsequently also of the EEA, in 2004 and 2007, the three EFTA States have concluded separate agreements with several of the new Member States on the administration of funds and projects under the ‘EEA Financial Mechanism’.27 These ‘Memoranda of Understanding’ lay down rules on such issues as how to organise the public administration of the recipient State for handling projects

26 Article 98 EEA and Decision 1/94 of the EEA Joint Committee on the rules of procedure for the committee, [1994] OJ L/85/72. 27 See, eg, Memorandum of understanding on the implementation of the EEA financial mechanism 2004–2009 between Norway, Iceland, Liechtenstein and Slovakia, signed 11 February 2005. This agreement between the four States supplements the Agreement of 14 October 2003 between Norway and the European Community on a Norwegian Financial Mechanism for the period 2004–2009, [2004] OJ L/130/80.

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Henrik Bull (tasks of the national ministries of finance, etc). Presumably, this would fall outside the external competence of the EU to negotiate on behalf of the Member States concerned. It also seems to be a widely held view that the EEA Agreement provides for ‘political dialogue’. Such clauses are quite common in association agreements (of which EEA is formally one) and are one reason why association agreements are mixed agreements. However, the EEA Agreement does not contain a provision on ‘political dialogue’ of the sort usually found in association agreements. Article 89 EEA on the tasks of the EEA Council foresees that the ‘Contracting Parties, as to the Community and the EC Member States in their respective fields of competence may … raise in the EEA Council any issue giving rise to difficulty’ within the general competence of the Council, which, again according to Article 89 EEA, extends to ‘giving the political impetus in the implementation of this Agreement’ and ‘[making] the political decisions leading to amendments of the Agreement’. Presumably, this may in principle even extend to matters not covered by the external competence of the EU. A telling sign of the insignificance of the Member States as Contracting Parties in their own right is the exchanges of letters between the European Community, on the one hand, and the three EFTA States respectively, on the other hand, on the provisional application of the agreements relating to the enlargement of the EEA in 2004 and 2007.28 These letters make absolutely no reservation, even in general terms, with regard to parts of the EEA Agreement falling outside the competence of the EC.

IV.

WAS ARTICLE 24 TEU WORSE THAN MIXITY?

As pointed out in section II. above, apart from the EEA Agreement, none of the agreements between Norway and the EC or, later, the EU is a mixed agreement. However, several of them have Article 24 EU, as it stood before the entry info force of the Lisbon Treaty, as their legal basis on the EU side.29 It may be recalled that such agreements were negotiated by the Council Presidency assisted by the Commission, and often had to be approved through national procedure in one or 28 See Agreements in the form of an exchange of letters concerning the provisional application of the Agreement on the participation of the Czech Republic, Estonia, Cyprus, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia and the Slovak Republic in The European Economic Area and the provisional application of four related agreements, dated 1 April 2004, [2004] OJ L/130/3, and Agreement in the form of an exchange of letters between the European Community and the Kingdom of Norway concerning the provisional application of the Agreement on the participation of the Republic of Bulgaria and Romania in the European Economic Area and the provisional application of four related agreements, dated 27 July 2007, [2007] OJ L/221/11. The provisional application of the former Agreement ended on 6 December 2005, after ratification procedures had been completed by all Contracting Parties, [2006] OJ L/149/30. 29 See Art 24(4), which made it applicable also to matters falling under Title VI TEU, dealing with police and judicial cooperation in criminal matters.

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Mixity Seen from Outside EU but Inside Internal Market more Member States afterwards. This often involved approval by national parliaments. From the point of view of third States, this came close to negotiating a mixed agreement. In addition, the negotiating process was in some ways even more problematic than it is when negotiating mixed agreements: the negotiating team was headed by a representative of the Member State holding the Presidency, and this person did not necessarily have much personal interest in the matter. The real job was often left to his or her loyal lieutenants from the Council secretariat. These individuals are usually very competent with regard to the subject matter, so the substantive discussions usually took place between them and the representatives of the third States, as well as the usually equally competent officials of the Commission who were also present. However, the officials of the Council secretariat did not carry the same clout vis-à-vis the Member States as the Commission does when negotiating from the driver’s seat on behalf of the EU—neither did the Commission itself when simply assisting in negotiating agreements falling under the second or third pillar. After the negotiating mandate had been drawn up by the Member States behind closed doors, the Presidency was often left with little room for manoeuvre when meeting with the third States. Third States were then in fact presented with a ‘take it or leave it’ option. This was not necessarily because the mandate represented a fragile compromise on politically sensitive issues, but because the Member States had more pressing issues to discuss than their negotiating position concerning issues not of paramount importance to them—which is often the case when only small third States are involved. This often led to attempts by the third States to conduct de facto negotiations with the several EU Member States directly before the negotiating position of the EU has been decided. However, one was then often met with the argument that the EU States were unable to take a position on the issues because the EU negotiating mandate was not yet ready. In short, it was either too early or too late. Furthermore, when the agreement had finally been signed, there was often little sense of urgency in the capitals with regard to approving the agreement. This could take years—again not because the issue was controversial, but because it was simply not very important when compared to other issues on the agenda. This demonstrates the truth in the old saying that the biggest problem small European States face in their relationship with the rest of the word, is that they do not themselves pose a big problem for the rest of the word. The agreement on the European arrest warrant is a good example of this: few criminals in the EU would be so careless as to head north for Norway when on the run from local law enforcement authorities. Consequently, for most EU Member States, the possibility of having criminals extradited from Norway is low

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Henrik Bull on their list of priorities.30 However, most Norwegian criminals who try to escape from Norway head for the EU. For Norway, this is a real problem. Thus far, the 2006 Agreement concerning arrest warrants is still far from entering into force.31 One may wonder whether things might actually have proceeded more quickly if the national governments had participated directly in the negotiations for a mixed agreement. At least this would have presented a better opportunity for the third State negotiators to have direct contact with experts from the Member States—experts who would then perhaps take more interest in the matter back home. The Lisbon Treaty has abolished the special procedure previously found in Article 24 EU. The conclusion to be drawn from the above is that it will not be missed by third States. For them, it is better to deal with the Commission as sole negotiator on the EU side. As with all other bureaucracies, the Commission has an interest in a successful outcome of whichever projects it is pursuing. This is not necessarily so with the Member States meeting within the Council. It is, of course, true that the Commission must confer with the Member States as the negotiations proceed, and the final decision may still rest with the Council. However, the Commission has more influence vis-à-vis the Member States than has the Council secretariat, and is better able to lean on the Member States to get them to accept a certain solution. When a third State and the Commission have reached a negotiating result, the Commission is often perceived more as an ally than as an adversary by the third States in the subsequent discussions within the EU. V.

‘SUBSTANTIVE MIXITY’—THE REAL PROBLEM FOR EFTA STATES?

The problem which the EFTA States are beginning to experience in relation to the EEA Agreement is ‘mixity’ of a nature different from ‘mixity’ in the classical sense: the EEA ‘Main Agreement’, which contains general principles copied from the EC Treaty and relating to free movement and competition, has not been revised as the EC Treaty has been amended. Not even the Maastricht amendments have been incorporated, although they were in fact known towards the end of the EEA negotiations. This means that EEA internal market law is not necessarily quite the same as EU internal market law. 30 Among the Nordic States, where this is a real issue, there is long-standing regional cooperation with regard to extradition. Extradition procedures based on treaties with Sweden (21 February 1907), Denmark/Iceland (1 December 1909) and Finland (10 November 1925) were simplified by harmonised laws in all States in the 1960s (in Norway: Act of 3 March 1961 No 1 on extradition of criminals to Denmark, Finland, Iceland and Sweden). 31 At the end of 2009, neither the EU, nor Norway or Iceland had ratified. The reason why not even Norway and Iceland have ratified is apparently that the EU Member States are very slow in fulfilling their own constitutional requirements for making the agreement binding on them. This means that the EU ratification will still take a long time, and the issue has therefore also slipped further down on the agenda of the Norwegian and Icelandic ministries of justice.

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Mixity Seen from Outside EU but Inside Internal Market On the other hand, when the EU decides on new legal acts concerning, for instance, free movement of persons, there is no point in the EU keeping legal acts concerning ‘new’ fields of legislative activity separate from ‘old’ pre-Maastricht fields. Thus, new legal acts concerning the internal market may, from the point of view of the EEA, represent a mixture of provisions which are EEA-relevant and provisions which are not. This has been perceived as a problem, for instance, with regard to Directive 2004/38/EC on free movement for European citizens as part of the EEA Agreement: which of the provisions in that Directive are based on the Treaty provisions concerning citizenship only, and which provisions would have been the same even without any rules on citizenship in the Treaty? For the EU Member State, this question is irrelevant; for the EFTA States it is not. It took three years of discussion between the EFTA side and the EU side to make the Directive part of the EEA Agreement, not least due to the uncertainty surrounding this question32 With regard to the Schengen-related agreements too, it has become a problem for the EFTA States that, for the EU internally, it does not make sense anymore, not even from a formal point of view, to distinguish between ‘Schengen rules’ and other instruments relating to justice and home affairs. The EU initiates ‘packages’ which incorporate measures both inside of the ‘Schengen cooperation’ in which Norway and Iceland participate, and ‘non-Schengen’ measures which fall outside, but in which it would make much sense for Norway and Iceland to participate. Thus, the most pressing problem for the EFTA States for the time being seems to be a phenomenon which from the EFTA point of view could perhaps be termed ‘substantive mixity’: EU legal acts may now combine provisions falling inside the scope of application of the agreements with the EFTA States, and provisions falling outside the scope of those agreements. For the EU, this means more comprehensive, and thus better, policies. For the EFTA States too, it would often have been preferable to have the whole package, but for formal reasons they cannot. This is not a problem for the EFTA States alone; it may also turn out to be a problem for the EU to have the EFTA States partly inside and partly outside the packages. So why not amend the ‘Main Agreement’ of the EEA Agreement as well as the Schengen arrangements? First, some new EU provisions would be difficult to fit into the EEA Agreement in any case, as that Agreement has more limited objectives than the EU Treaty and the Treaty on the functioning of the European Union. Citizenship rules are one example. It would make more sense to include other provisions, such as the provisions on civil law cooperation (bankruptcy, choice of law rules, etc). However, because the EEA Agreement is a mixed agreement, amendments to the ‘Main Agreement’, or the addition of new annexes 32 In its Decision No 158/2007 ([2008] OJ L/124/20), incorporating Directive 2004/38/EC ([2004] OJ L/158/77) into the EEA Agreement, the EEA Joint Committee laid down certain rules on the application of the Directive to the EEA. It remains to be seen whether this actually solves all interpretative problems which may arise.

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Henrik Bull for new fields of cooperation, would require approval by all 27 Member States (in addition to the approval of the European Parliament). So far the EFTA States— Norway at any rate—do not want to provoke a general debate within the Member States and in the European Parliament on the usefulness of the EEA Agreement and other special arrangements for the EFTA States. It is feared that the whole edifice would come tumbling down if parliamentarians were to ask themselves why these small States should enjoy the benefit of the internal market without full EU membership. So it may be argued that ‘mixity’ has turned out to be a practical problem for the EFTA States after all.

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17 Mixity from the Outside: the Perspective of a Treaty Partner PETER M OLSON*

I.

INTRODUCTION

A

S THE CONTRIBUTIONS of other participants in the Leiden–Bristol conference made abundantly clear, mixed agreements present significant difficulties for academics and practitioners working within the legal system of the European Union. The problems presented by mixity are by no means confined to Europeans, however: mixed agreements present tremendous challenges for the EU’s treaty1 partners, who must wrestle with novel legal and practical issues imposed on their treaty-making practices by the dictates of European law and associated policy choices. The EU’s treaty partners2 are well aware that the impetus for mixed agreements derives from European law and cannot be fully understood outside that analytical framework. With the partial exception of the non-EU members of the European Economic Area, however, European law bearing on mixity is not the domestic law of the EU’s treaty partners, nor does it govern them as a matter of international law. For these partners, mixity is experienced less as an analytically complex constitutional and legal doctrine than as a seemingly endless series of practical problems. Most mixed agreements are multilateral in character, and until recently the United States encountered mixity only in this context. The United States’ first

* The views expressed here are those of the author, and do not necessarily reflect the views of the US Government. 1 Although in US constitutional usage the term ‘treaty’ refers specifically to those agreements which require the Senate’s ’advice and consent’ before ratification by the President, the term will be used here to refer to all international agreements. 2 Generalisations about the experience of treaty partners other than the US are based on interactions over a number of years suggesting that US experience and perceptions are widely shared by other States with extensive treaty relations with the EU.

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Peter M Olson serious engagement with mixed agreements came in the context of the 1982 UN Convention on the Law of the Sea.3 Later multilateral mixed agreements range from the Ozone Treaties4 to the 2006 International Tropical Timber Agreement.5 The United States’ experience with bilateral6 mixed agreements is more recent. Its first such agreement, the Galileo/GPS Agreement,7 was concluded in 2004; the second, the US–EU Air Transport Agreement,8 in 2007. Because some Member States have yet to ratify them, neither of these agreements has yet entered into force. Important aspects of the Galileo/GPS Agreement are, however, being implemented informally, and the Air Transport Agreement has by its terms been applied provisionally since 30 March 2008. In 2007 the United States and European Union also concluded the second PNR Agreement,9 an agreement to which the Member States were not Parties but which had important ‘mixed’ characteristics, including that it was negotiated primarily by the Commission and that Member State approval is required before its definitive entry into force; this agreement is now being applied provisionally. The division of competences giving rise to mixity was addressed in a different way through conclusion in 2003 of mutual legal assistance and extradition treaties with the EU, and through conclusion between 2004 and 2007 of an additional 54 treaties, two with each of the individual Member States, implementing those US–EU treaties.10 Although relatively limited, these experiences have been sufficient to expose a wide range of problems associated with mixity. This chapter examines some conceptual/legal challenges that mixity presents to the EU’s treaty partners. It then sheds light on various practical problems encountered by third States when dealing with the EU and its Member States.

3 United Nations Convention on the Law of the Sea (UNCLOS), done at Montego Bay (Jamaica), 10 December 1982, entered into force 16 November 1994, 21 Int’l Legal Materials 1261. 4 Convention for the Protection of the Ozone Layer, with annexes (Ozone Convention), done at Vienna, 22 March 1985, entered into force 22 September 1988, [1988] OJ L/297/8; Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), done at Montreal, 16 September 1987, entered into force 1 January 1989, [1988] OJ L/297/21. 5 International Tropical Timber Agreement 2006, done at Geneva, 27 January 2006. 6 This term is used here for convenience: as a matter of law, the US considers itself to be in direct treaty relations with each Member State (MS) party to a mixed agreement as well as with the European Union, and accordingly considers mixed agreements to be multilateral in character. 7 Agreement on the Promotion, Provision, and Use of Galileo and GPS Satellite-based Navigation Systems and Related Applications, done at Dromoland Castle, Co Clare (Ireland), 26 June 2004. 8 Air Transport Agreement, done at Brussels 25 April 2007 and Washington 30 April 2007, [2007] OJ L/134/4. 9 Agreement between the United States of America and the European Union on the Processing and Transfer of Passenger Name Record (PNR) Data By Air Carriers to the US Department of Homeland Security (DHS), done at Brussels 23 July 2007 and at Washington 26 July 2007, [2007] OJ L/204/1816. The European Court of Justice had in 2006 invalidated a first PNR agreement concluded in 2004 between the US and the then Community, in Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission (PNR) [2006] ECR I-4721. 10 Most of the treaties with the MS amended existing bilateral treaties. Instruments of ratification for all 56 treaties were exchanged on 28 October 2009, and entered into force on 1 February 2010.

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Mixity from the Outside II.

CONCEPTUAL AND LEGAL CHALLENGES ASSOCIATED WITH MIXITY

Mixity presents fundamental conceptual challenges to those States—in effect, all States outside Europe—whose framework for the conduct of international relations is based on the unitary sovereignty of States and a sharp distinction between domestic law and public international law.11 While many (and not only in Europe) consider this ‘Westphalian’ perspective as outdated, even benighted, it has been and remains the essential conceptual underpinning for the structure and operation of the international system. It is familiar, readily comprehensible, and associated with a well-recognised and generally functional set of rules developed over centuries of experience. These are no small advantages in the sphere of treaty making. When a sovereign State becomes party to a treaty, it is clear what it has committed itself to. It has typically accepted the same package of rights and obligations as every other party—and, as a general proposition, if a party understands its own rights and obligations, it also understands those of every other party. It is clear, as a matter of international law, who bears operational and legal responsibility for addressing any problem that may arise. This clarity largely disappears, however, in the context of mixed agreements. A. The tension between mixity and standard treaty practice Europe’s treaty partners understand that the Union’s competence—wide, difficult to define and mutable as it may be—derives from specific transfers of sovereignty from the Member States,12 and that, broadly speaking, mixity allows the reassembling of that divided sovereignty so as to permit the assumption and implementation of treaty rights and obligations to which neither the Union nor the Member States alone could give full effect. Europe’s partners have considerable sympathy for the legal and political challenges mixity poses, and have shown themselves willing, within reason, to work with the Union to find solutions that accommodate the EU’s unique constitutional workings. The fact, however, remains that, because sovereignty is divided, mixity directly confronts fundamental elements of widely-shared treaty practice. The consequences are more than theoretical, and occur at every stage from negotiation to implementation and enforcement. The premise underlying standard treaty practice is that each State is fully capable of entering into binding undertakings and able to carry them out, and is 11

See chapter four by Robert Schütze in this volume. In the US experience, however, despite the relatively modest formulation of former Art 5 of the Treaty Establishing the European Community (replaced by Art 5 TEU), this legal concept is often sharply at odds with the actual balance of power between the MS and EU institutions—most notably the Commission, as the ‘guardian of the Treaties’, and the ECJ, which appears to take seriously the mandate to foster ‘ever closer Union’. 12

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Peter M Olson prepared to be held politically and legally responsible for doing so. As a general proposition (with very limited exceptions), States are not required or expected to understand the internal law of their treaty partners, and the internal arrangements through which a State executes its undertakings are no other State’s business.13 In those cases in which the internal constitutional order of a State may significantly affect its ability to assume or implement obligations, the treatymaking repertoire includes devices such as federal State clauses or the taking of reservations, which respect the basic concept of comprehensive sovereignty while accommodating the particular limitations of individual States, allowing them otherwise to participate as full treaty partners.14 The EU could have chosen a system under which a single entity could enter into an agreement externally binding on both the Union and Member States regardless of the internal allocation of competence; such an approach might well resemble the way federal States now participate in international affairs. But that has not—at least yet—been the EU’s constitutional course. A consequence of this political choice, however, is that the division of legal competences, which in the case of other sovereigns is a wholly internal matter, is in the EU’s case uniquely presented in the international sphere as well.15 Because the internal division of competence carries over into the international sphere, the EU’s treaty partners have a keen and direct interest in what EU internal law provides with respect to where the power lies to enter into various commitments, who is responsible for seeing that those commitments are implemented, who will actually implement them, who is liable for any failure to implement, who can be taken to third-party dispute resolution and the parties against whom countermeasures can be taken. The nature of the relationship between the partner and the Union and Member States may determine whether compliance with the treaty is evaluated by an external tribunal or by the European Court of Justice (ECJ) as a matter of internal EU law. The specific content of European law is never more important to treaty-making with the EU than in the case of mixed agreements.

13 Vienna Convention on the Law of Treaties (VCLT), done at Vienna 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, Arts 27 and 46(1). The US is not a party to the VCLT but considers it generally to reflect customary international law. See, eg, letter dated 24 July 1986 from J Edward Fox, Ass’t Sec of State for Legislative and Intergovernmental Affairs to Sen Richard C Lugar, Chairman of the Senate Foreign Relations Committee, Cumulative Digest of US Practice in International Law, 1981–1988, 1236. 14 Federal State clauses are relatively rare, and the specific reasons for adopting such a clause are generally widely discussed before being accepted by the parties to the negotiation. Other parties to a treaty may reject a federal State reservation if, in their view, it upsets the treaty’s balance of rights and obligations. 15 In Ruling 1/78 (IAEA) [1978] ECR 2151, for example, the ECJ determined that the Community must be permitted to participate in the conclusion of the Convention on the Physical Protection of Nuclear Materials, Facilities and Transports, done at Vienna 26 October 1979, entered into force 8 February 1987, 1456 UNTS 124, thus requiring that it be concluded in the form of a mixed agreement.

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Mixity from the Outside B.

The ambiguity of EU ‘declarations of competence’

The unique role of European law may be seen particularly clearly in the case of declarations of competence.16 In the novel context of shared treaty-making by partial sovereigns, the EU’s treaty partners have accepted, at least to a degree, the need to set aside the usual rule that internal law is generally irrelevant to treaty-making. Accepting that the EU’s internal law may bear on which rights and obligations the Union and Member States, respectively, are able to assume in becoming party to a mixed agreement, EU treaty partners ask in return that the internal allocation of competences relevant to the assumption and implementation of those rights and obligations—and subsequent changes in that allocation—be set forth clearly, comprehensibly and authoritatively. Through such declarations, the EU’s treaty partners seek in two ways to achieve—or at least approximate—the legal certainty found in ‘normal’ treaty relations among sovereigns. First, because the allocation of competence under European law is both difficult to understand and constantly mutating as a result of modifications to the European Treaties, new exercises of competence by the Union and decisions of the ECJ, partners seek to acquire accurate and current information as to the content of European law applicable to the specific situation addressed by the treaty. Secondly, they wish to obtain a formal identification of which element or elements within the European collective can be held responsible for performance or breach of each of the obligations contained in the treaty. Although the ECJ at one time suggested that allocation of competences is an internal matter in which the EU’s treaty partners have no legitimate interest,17 the EU has generally acknowledged the appropriateness of its partners’ requests for declarations of competence and been prepared to provide such declarations. Many multilateral treaties require such a declaration to be submitted along with the Union’s instrument of ratification, and formal notification by the EU in the event of any significant change in the allocation of competences.18 Unfortunately, the result rarely, if ever, even comes close to satisfying the needs that gave rise to the practice.

16 The question of formal declarations of competence is an issue principally in the multilateral context. In a bilateral negotiation questions of competence are likely to have been discussed repeatedly and in some detail, and to have been reflected in the specific terms of the agreement. See chapter twelve by Frank Hoffmeister in this volume. 17 Ruling 1/78, above n 15, para 35. 18 This requirement is intended to protect treaty partners against the ‘moving target’ that would otherwise result from changes in internal allocation of competence. The allocation of competences may change to reflect internal European law, but such changes most frequently take legal effect on the international plane, modifying the allocation of rights and responsibilities between the Union and MS, only after the EU has formally notified the other Parties of those changes. Declarations of competence also normally require the Union and MS to respond to requests for clarification on the allocation of competences. Competences not declared as transferred to the Union are deemed to remain with the MS, raising the possibility that the international obligations of the Union and MS will not correspond to their ‘internal’ competences.

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Peter M Olson Most declarations of competences follow a standard structure. They normally begin with relatively general descriptive statements about the broad competences relevant to the agreement at hand falling within the exclusive or shared spheres of the Union and of the Member States. These statements are followed by a caution that the allocation of competences is subject to change. The final standard element is a list of formal citations of specific EU acts and conventions bearing on the internal allocation and exercise of competence in areas related to the subject matter of the treaty.19 Such a declaration is not a particularly useful document from the point of view of the EU’s treaty partners. Declarations of competence rarely, if ever, include something which would be far more informative: an article-by-article (or, even better, a clause-by-clause) analysis informing treaty partners clearly and in detail which entity will be exercising which rights and performing which obligations. If the EU’s treaty partner wishes to gain anything more than a superficial understanding of the allocation of competences, it must instead first obtain and read all the listed acts and conventions. While this may be informative to a degree, appreciating the significance and interaction of those legal acts is possible only on the basis of a sophisticated understanding of EU law comparable to that of skilled European lawyers. Even then, uncertainties remain, because even highly knowledgeable European lawyers may disagree about the content of the law.20 This state of affairs is, of course, sharply different from the ‘traditional’ rule, under which a party is straightforwardly responsible for the exercise of all rights and performance of all obligations of the treaty. It is certainly not what the EU’s partners had in mind when making declarations of competence a condition of agreeing to multilateral mixed agreements. Implicit confirmation of the limited value of declarations of competence in their current form may be seen in the apparent fact that no such declaration has ever been updated,21 although it seems highly unlikely that European law relevant

19 See, eg, the 23 May 1989 Declaration by the European Economic Community in conformity with Article 13(3) of the Vienna Convention for the protection of the ozone layer concerning the extent of its competence with respect to the matters covered by the Convention and by the Montreal Protocol on substances that deplete the ozone layer Annex II, [1988] OJ L/297/8. See also Declaration concerning the competence of the European Community with regard to matters governed by the UN Convention on the Law of the Sea of 10 December 1982 and the Agreement of 28 July 1994 relating to the implementation of Part IX of the Convention, 1 April 1998, 1998 UNTS 227. 20 Indeed, discussion with MS representatives occasionally suggests that there may be significant disagreement between the Union and the MS about the effect of EU legislation—although the fact that MS representatives have approved the negotiating mandate and conclusion of the agreement (and declaration of competence) in the Council constitutes at least pro forma acceptance of its content. 21 See chapters ten and six by Pieter-Jan Kuijper and Panos Koutrakos respectively in this volume. Moreover, as in the case of the Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (Beijing Amendment), adopted at Beijing 3 December 1999, entered into force 25 February 2002, UN Circular Note CN1231.1999.TREATIES-1, 28 January 2000, it appears that on occasion promised declarations of competences may not in fact be provided.

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Mixity from the Outside to the UNCLOS, for example, has remained wholly unchanged over the third of a century since the UNCLOS declaration of competence was issued. There is no doubt that it is difficult to provide meaningful declarations of competence, and that those difficulties go beyond mere inconvenience.22 There may be genuine uncertainty on the allocation of competences under European law, with results ranging from disputes between the Commission and Member States, during the course of bilateral or multilateral negotiations, over the boundaries of Union competence, to such extreme results as the May 2006 invalidation by the ECJ of the first US–EU PNR data transfer agreement on grounds that the then European Community lacked authority to conclude the agreement itself.23 Nonetheless, such problems do not make the desires of the EU’s treaty partners for such clarification illegitimate, and it is regrettable that the current practice of providing formally responsive but essentially opaque ‘clarifications’ of EU law appears likely to continue for the indefinite future.

C. Troubling ‘disconnection clauses’ Disconnection clauses are an increasingly common method of ensuring, in an international context, that obligations of European law do not conflict with potentially inconsistent provisions of treaties (whether mixed or not) agreed to by the Member States.24 While disconnection clauses require less interpretation and provide European Parties with greater legal certainty that there will be no conflict between their obligations under European and international law, they leave EU’s treaty partners in an even greater state of uncertainty than in the case of declarations of competence. The structure of disconnection clauses relieves the EU of even the limited obligation associated with declarations of competence to specify to its treaty partners the content of any derogation from the general terms of the treaty, much less to report to them any changes in the content of European law following entry into force of the treaty. Disconnection clauses are, moreover, in some ways more troubling than declarations of competence, in giving the mutual obligations of Member States under internal European law priority, as a matter of international law, over the provisions of the treaty itself.25 22 The Union and MS appear, however, entirely capable of making highly concrete decisions on the exercise of competence when sufficiently motivated—as when following the PROBA 20 procedure or the procedures applicable to participation in the FAO contained in Rule XLI, FAO General Rules of the Organization. See discussion in P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (Oxford, Oxford University Press, 2004) 195–96, and 204. 23 Joined Cases C-317/04 and C-318/04 Parliament v Council and Commission (PNR), above n 9. 24 See chapter eight by Marise Cremona in this volume. 25 This represents a notable step beyond Art 41 VCLT, which permits States to agree separately to vary the terms of a treaty as among themselves. Because such agreements do not form part of the underlying treaty, no question can arise whether the general terms of the treaty are modified by the disconnection clause.

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Peter M Olson III.

PRACTICAL PROBLEMS ASSOCIATED WITH MIXITY

Mixity raises a myriad more concrete problems as well. Early questions in any negotiation of a mixed agreement include who the European negotiators represent and what their authority is. A. Negotiating with the EU and its Member States In negotiations of mixed agreements, the Commission most often leads, and may in fact conduct the entire negotiation. In the air transport negotiations, for example, the Member States’ representatives were rarely invited to speak, and many Member States were not represented at some, or even all, of the negotiating sessions. It is difficult to know to what degree this diminished role for Member State participants may result in reduced focus on their part on the substance of the negotiation. Allowing the Commission generally to take the lead has certain advantages for both sides in the negotiation—it would doubtless be very difficult to conduct a negotiation if the Commission was allowed to speak only to matters of then Community competence, and the Presidency or Member States only to those not falling within Community competence.26 For the EU’s negotiating partner, however, this Commission role has the major disadvantage of obscuring when the Commission is speaking for the Community, when on behalf of the Member States and when in its particular interest.27 The Council’s mandates authorising commencement of negotiations on a mixed agreement do not indicate the basis for deciding that that agreement is to take mixed form. If, as has frequently been suggested,28 the mixed format is at times chosen in order to avoid political disputes over whether the agreement could be entered into on the basis of EU competence alone, there may well be disagreement between the Commission and Member States over which parts of the agreement will be entered into on the basis of EU competence and which on the basis of Member State competence.29 As discussed above, experience with

26 In the negotiations on the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (UNESCO Convention on Cultural Diversity), done at Paris 20 October 2005, entered into force 18 March 2007, UN registration number I-43977, strict limits on the Community’s powers with respect to cultural matters required that the Presidency conduct certain portions of the negotiations. Because the Community and MS in fact coordinated closely on positions taken on all issues, however, the unusual result was bifurcated representation of apparently fully-coordinated EU positions. 27 See n 30 below. 28 See Eeckhout, above n 22, 197–98. Cf M Maresceau, ‘Bilateral Agreements Concluded by the European Community’ (2004) 306 Recueil des Cours 129, 211. 29 An alternative reason for adopting a mixed format might be to avoid highlighting the degree to which Member States no longer possess competence in certain areas. An extreme example of loss of competence occurred in the context of the International Coffee Agreement (ICA). In 2001, the Council approved signature of the ICA 2001, finding that the Community possessed ‘sole and

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Mixity from the Outside declarations of competence leaves little reason to think that issuance of such statements at the beginning of a negotiation would provide any significant clarification of whose interest is being represented at any given point in the discussions.30 But even if the Member States are not playing an autonomous part in the negotiation itself, before the negotiator can voice or negotiate on a position the Member States and the Commission must agree both on an overall approach and on tactical matters arising in the course of the negotiation. This presents particular difficulties in the multilateral context, where the potential scope of the treaty may initially be less clear and, because the timing of the negotiation is not in the control of the EU, delays for internal coordination cannot be accommodated as readily as in bilateral situations. During the process of internal decision making, the Commission and Member States may well be prepared to listen to views of the United States or other negotiating partners, but before the establishment of an agreed EU position may resist engaging substantively, or participating in a back-and-forth exploration of the bases for differences or in identifying possible common ground, on grounds that there is no agreed European position. After an agreed European position has been reached, however, the EU’s negotiating partners not infrequently find that it is too late for productive informal discussions, both because Member States must now give full support to the now-agreed position and, more pragmatically, because the intensive internal political process of arriving at that position has involved trade-offs and commitments leaving little flexibility in the European position.31 However much Commission negotiators may dislike the practice, it is unsurprising that in such circumstances negotiating partners, including the United States, will seek to persuade individual Member States to express their views within EU councils, so as to ensure that they are given at least some consideration at a time when they can have a real effect.32

exclusive competence’ over the ICA’s subject matter, but nonetheless authorised MS to remain in, or even newly to join, the ICA as Parties in their own right for a limited period of time—a decision justified on pragmatic grounds but difficult to square with the proposition that the MS did not possess competence to assume the rights and obligations of party status: see Council Decision 2001/877/EC, [2001] OJ L/326/22. The US rejoined the International Coffee Organisation in 2005, questioning participation of the MS in light of the Council’s determination and insisting on revisiting the issue when negotiating the ICA 2007. The Community will be the sole EU party to the ICA 2007 upon its eventual entry into force, but in the meantime MS—including, under a September 2002 decision of the International Coffee Council, some MS that have never ratified—remain Parties despite the fact that they have transferred to the Community their sovereign competence to carry out the rights and obligations associated with party status. 30 European negotiators also note, not without reason, that it is often only when an agreement has taken final form that a sound assessment can be made of which of its provisions fall within Union and which within MS competence. 31 See chapter sixteen by Henrik Bull in this volume. 32 This remains an obviously unsatisfactory ‘second-best’ solution, however, as it relies on a third party to present and argue the viewpoint from its own perspective, and according to its own understanding and interests rather than those of the negotiating partner itself.

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Peter M Olson B. The participation of the EU and its Member States in international organisations Problems also arise with respect to the substantive content of mixed agreements. Mixed multilateral agreements establishing treaty bodies, for example, raise significant issues relating to voting. In the usual case—ie when votes are not weighted and parties to a convention are each given a single vote—the Union normally seeks only a single vote when it participates in an international organisation or treaty-based organisation on the basis of its exclusive competence. When European participation is through a mixed agreement, however, the EU consistently demands a full individual vote for every Member State not only for matters within Member State competence, but also for those where competence lies exclusively with the Union.33 There is a certain logic to allowing Member States full votes in areas in which they retain competence, although even in such cases their freedom to determine their vote34 is very likely to be constrained by obligations under European law to uphold a common position or the Union’s position on matters affecting, or potentially affecting, EU competence. The risk of Member State ‘freelancing’ is presumably one motivation for the common practice of adopting treaty provisions under which the Member States are legally denied the right to cast their own votes, which are instead cast by the Union in its own name.35 In the face of such practices, it becomes ever more difficult to accept that Member States should continue to be counted in the same way as fully sovereign Parties. There would no doubt be considerable conceptual and practical difficulties in providing the Union a single vote in areas of its competence and votes for each Member States in areas of theirs, but while the EU is eager to take full advantage of the benefits afforded it by the current state of affairs, one seeks in

33 See, eg, Rule II.3, Rules of Procedure of the Codex Alimentarius Commission, Codex Alimentarius Commission—Procedural Manual, 17th edn. The EU has generally accepted the principle of ‘no additionality’, ie that it should not obtain a vote in its own right in addition to those of the MS, since the powers it exercises are ones transferred to it by the MS rather than ones additional to those of the MS. 34 Or even their delegates’ physical location, as witness the Commission’s remonstration with two MS for depriving the Community of their votes by absenting themselves from the room when the treatment of Parmesan cheese was under consideration by the Codex Alimentarius. See 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 CMLRev 41, 66. 35 Eg, Art 3(8) of the Statute of the Hague Conference, as amended in 2006. Statute of the Hague Conference on Private International Law, adopted during the 7th Session of the Hague Conference on Private International Law, 31 October 1951, entered into force 15 July 1955, 220 UNTS 121; amendments adopted during the 20th Session on 30 June 2005, entered into force 1 January 2007. The Union has extended this practice in other contexts by seeking provisions under which the Union will for quorum purposes be counted as equal to the number of MS Parties when decisions are made on matters falling within EU competence. Eg, Rule 35(2), Rules of Procedure for the Conference of the Parties of the Rotterdam Convention, UNEP/FAO/RTC/COP.4.3.

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Mixity from the Outside vain any acknowledgement on its part of the anomaly of its controlling and casting 27 votes when every other party is permitted only one36.

C.

Authentic languages of mixed agreements

Similar overreaching in the bilateral context is seen in the tendency of Member State involvement to bring with it a demand to conclude agreements in the almost two dozen official languages of the Union. This situation does not arise in the multilateral context—there seems to be no objection to concluding multilateral agreements in only a few languages.37 Nonetheless, a ‘23 authentic languages’ request has become more common in the last couple of years. As recently as 2004, when the Galileo/GPS Agreement was concluded, the EU found no difficulty in concluding a mixed agreement in all official languages, but with only the English text being authentic. In the context of the 2007 PNR Agreement, however, the EU demanded that all 23 languages be equally authentic in every way. Although the United States agreed to the demand on that occasion, it is not persuaded that these additional texts are necessary in order to ensure that the Commission or each Member State fully understands what it is agreeing to, or indeed for any other substantive purpose.38 The problem such demands present, however, is not simply one of inconvenience, cost, or potential delay in concluding agreements, although these are all concerns. Negotiators often choose the terms used in an agreement with great care, and with full awareness of their potential implications and linguistic overtones. It is doubtful that any State—or even, to be honest, the EU itself despite its extraordinary translation capabilities39—can afford to devote that 36 The only analogy is the not particularly uplifting one of the three UN votes possessed by the USSR from 1945 through 1991; appearances were maintained in that case, however, with votes being cast separately by the three formally autonomous Ukrainian, Byelorussian and Soviet delegations. 37 Perhaps significantly, it does not appear that the EU is party to any multilateral treaty in which French is not an authentic language. An exception to the general rule stated in the text is found in the Lomé Convention and Cotonou Agreement, successive versions of which have been concluded in all the official languages of the Union, but no other official language of any of the African, Caribbean and Pacific Group (ACP) partners. The 2000 Cotonou Agreement is thus fully authentic in all of the then-11 official Community languages, but not in any official language of even so important an ACP partner as Indonesia, a country of a quarter-billion people. Art 100, Partnership 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, signed in Cotonou 23 June 2000, entered into force 1 April 2003, [2000] OJ L/317/3. 38 All treaty negotiations between the US and the EU, and surely many of the EU’s negotiations with other countries, are conducted solely in English. All texts are developed in English. The great bulk of US agreements with the Union under its exclusive competence are done in English only. It appears that translations into the other official languages are not done until after conclusion of the negotiations, and are thus not available for purposes of internal EU discussions during the negotiations. The question of additional languages is usually raised only at the last minute, as a legal house-keeping measure. 39 This capability results from the EU’s internal requirement to translate legally-binding documents into all of its official languages. While there are clear political benefits within the EU system to

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Peter M Olson same knowledgeable attention to ensuring that texts translated after the fact, much less 20 or more such texts, fully respect the nuances of the negotiation. It is at least arguable, however, that any ‘equally authentic’ text can be invoked on the same basis as the text of negotiation. The problem is particularly acute where there is binding third-party dispute resolution: each additional language multiplies the potential for straying from the negotiators’ intended meaning. While in principle both sides are equally at risk, the fact that the translation is done in the first instance by the EU—which for internal reasons is already obliged to provide translations into all its official languages—creates an obvious asymmetry of risk, multiplied in the case of many of the EU’s treaty partners by their practical inability even to review the accuracy of the translation in many of the official languages.40 A demand for 23 authentic languages is thus a demand that the EU’s treaty partner accept not only considerable inconvenience, but potentially significant legal risk.41

D. International responsibility of the EU and its Member States under mixed agreements Mixed agreements create problems as well when it comes to international responsibility for implementation of their terms. Under traditional practice, the action of a State is attributed to that State. The practice of executive federalism, however, greatly increases the uncertainty for treaty partners whether an action by a Member State that is inconsistent with a treaty’s terms is to be considered that of the Member State or rather that of the Union. Rulings such as that in Etang de Berre create further ambiguity by suggesting that the Union may assume responsibility—at least as a matter of internal law—for ensuring enforcement of treaty provisions in areas falling entirely within Member State competence; third

insisting that these documents be afforded full parity on the international plane as well, there is no apparent basis in European law for demanding such status. 40 The suggestion is not that the EU’s excellent translators have an ‘agenda’ but rather that their orientation toward European legal norms and requirements may have an unintended distorting effect on the translation. 41 While it can be argued that this demand merely parallels the time-honoured convention by which treaties are normally concluded in the official languages of both countries, there is no real analogy to the EU’s demand even on the part of countries with multiple official languages. A quick review of US treaty records suggests that neither India, post-apartheid South Africa, Pakistan nor Indonesia—not even Switzerland—has insisted on using more than one language besides English in bilateral agreements with the United States. Multilateral instruments are conventionally done in all official languages of the sponsoring international organisation, but the author is unaware of any international organisation with more than six such languages.

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Mixity from the Outside parties are left to wonder whether the Union would embrace similar responsibility in the international sphere42 (and, if so, whether the allocation of responsibility as between Member States and the Union through the elaborate construct of declarations of competence is in fact entirely necessary). This question could arise with particular force in the context of a mixed agreement which had not been ratified by all Member States before entry into force. Would the agreement be in force in the territory of the non-ratifying Member States and, if so, to what extent? To whom does the treaty partner owe duties—could such a Member State reap the benefits of party status without the costs? Where would the partner go to obtain a definitive determination as to which rights and obligations under a mixed agreement can or must be treated as being in force as between it and a non-ratifying Member State? As a matter of internal European law, would the Union have an obligation to enforce compliance with the treaty’s terms? Would the EU’s broad interest in compliance with an agreement to which it is a party have the effect of extending its competence as a matter of internal European law, or its responsibility to its treaty partners, into areas where it might not possess competence or responsibility had the Member State ratified? Mixity creates further issues with respect to liability. In the Galileo/GPS Agreement, the United States argued that the Union and Member States should be jointly and severally liable for any damages resulting from breach. The EU disagreed, taking the position that liability as between the Union and Member States should be determined by the internal allocation of competence—which could not be definitively determined at the time the Agreement was concluded.43 Questions of individual Member State competence were marginal—even theoretical—in that case and, because it seemed highly unlikely that any real issue of individual State liability would arise, the United States and EU were able in Galileo/GPS to agree that uncertain cases would result in joint and several 42 Case C-239/03 Commission v France (Etang de Berre) [2004] ECR I-9325. The fact that there was no declaration of competences under the governing treaty, the Barcelona Convention for Protection Against Pollution in the Mediterranean Sea, done at Barcelona 16 February 1976, entered into force 12 February 1978, revised at Barcelona 10 January 1995, 1102 UNTS 27, would make it easier in the specific case of the Etang de Berre to conclude that the Union would be jointly liable for the MS’ breach. See Eeckhout, above n 22, 222–23. 43 Although in US experience resisted by Commission negotiators, a common view appears to be that failure to specify the allocation of competences will result in joint liability as among the Union and MS. See Eeckhout, above n 22, 222–23; I MacLeod, I D Hendry and S Hyett, The External Relations of the European Community (Oxford, Oxford University Press, 1996) 158–59. The EU has in fact accepted provisions expressly envisioning the possibility of a disjuncture between its internal allocation of competence and the international obligations of the Union and its MS: Art 4(6) of Annex IX to UNCLOS provides that in the event of a ‘conflict between the obligations of an international organisation under this Convention and its obligations under the agreement establishing the organisation or any acts relating to it, the obligations under this Convention shall prevail.’ Art 5(3) provides that the MS are presumed to have competence save where a declaration of competence states that they have been transferred to the international organisation, and Art 6 assigns responsibility for breach in accordance with Art 5, with responsibility being ‘joint and several’ in the event a request for clarification of competence is not responded to in reasonable time.

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Peter M Olson liability unless the European side provided a timely statement definitively assigning responsibility. Despite initial reservations, the EU eventually accepted this provision. Neither side was happy with this result, however, nor is it clear that either would be prepared to accept a similar solution in other cases. Moreover, while the allocation of competence can affect how the EU implements provisions of a mixed agreement, that allocation does not dictate the answer to the question of liability and responsibility on the international plane.44 The greater difficulty for the EU’s treaty partners, however, is that so fundamental an issue as the character and extent of the liability of Member States and the Union under mixed agreements can remain so uncertain almost half a century after conclusion of the first mixed agreement. Disputes between the EU and a treaty partner do not fall within the ECJ’s jurisdiction. While the EU’s treaty partners are not bound by ECJ rulings, such rulings may, however, affect—indeed, dictate—the positions taken by the EU vis-à-vis treaty partners. This state of affairs is not in itself entirely unusual: in many States, decisions of domestic courts can affect the performance of treaty obligations by the State.45 In keeping with its status as a EU institution bound to promote ‘ever closer union’, the ECJ also has an institutional role and orientation that may dispose it to rule on treaty provisions in ways not necessarily corresponding to the intentions of the Parties at the time of negotiation.46 Because there is no mechanism by which the EU’s treaty partners can directly present their views on cases under consideration before the ECJ, however, there is a real risk that it will rule on a matter in which they are directly interested without the benefit of hearing their views directly.47

44 As suggested in n 18 above, the EU appears able to agree to be bound on the international plane by the terms of its declarations of competence, accepting the risk that they may not have been updated to correspond to internal law. 45 See, eg. Medellin v Texas, 552 US 491 (2008) — (25 March 2008), in which the US Supreme Court concluded that the International Court of Justice’s order in Case Concerning Avena and Other Mexican Nationals (Mexico v US), 2004 ICJ 12 (2004), that the US must provide consular access in accordance with its obligations to Mexico under the Vienna Convention on Consular Relations, was not directly enforceable federal law that pre-empts State limitations on the filing of successive habeas corpus petitions. 46 In Case C-459/03 Commission v Ireland [2006] ECR I-4635, for example, the ECJ concluded that European law prohibited Ireland from exercising its right under UNCLOS to take the UK to the UNCLOS tribunal, instead requiring that their bilateral dispute over interpretation of the UNCLOS (a mixed agreement) be resolved in European institutions because of its potential impact on matters falling within the Community’s competence. While that case did not directly implicate the rights of third States, other questions of potentially considerable importance could easily find themselves before the ECJ for resolution, eg, the degree to which the provisions of a mixed agreement that has entered into force are fully binding on a MS that has failed to ratify that agreement. 47 In the US, by contrast, although the Department of State, through the Department of Justice, often presents the views of foreign States to the courts, amicus briefs are regularly filed by foreign governments themselves and considered by courts at all levels. While litigants before the ECJ may consult with a treaty partner or attempt to represent its views in their own filings, this is an inadequate substitute for direct presentation by the partner of its views.

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Mixity from the Outside E. The entry into force of mixed agreements A final class of problems deriving from mixity is associated with the entry into force of such agreements, in light of the fact that mixed agreements must be ratified not only by the Union but by the Member States as well.48 It has become the usual—though by no means invariable49—practice that ratifications of a mixed agreement are submitted only after the Union and all Member States have completed their internal procedures. A significant drawback of this generally sound practice, however, is the opportunity it offers for Member States to pursue particular national agendas by delaying or simply refusing their approval for the agreement. The US–EU Air Transport Agreement concluded in 2007, for example, was nearly derailed at the last minute by the insistence of France that there be an equally authentic text in its own language in addition to the English in which it had been negotiated and concluded, backed by a threat to block the agreement in the Council if its demand was not met. There have also been cases in which one or more ratifications remain outstanding for years after the agreement’s entry into force for the Union and most Member States, giving rise to considerable uncertainty on the part of outsiders as to the status of the agreement during the interim.50 In some cases, such as the Galileo/GPS Agreement, the nature of the undertakings is such that it is possible effectively to begin implementation informally.51 In others, such as the 2007 PNR Agreement, it is possible to bring the agreement into force provisionally.52 More alarmingly, on several other occasions, the Union has suggested that the missing ratifications were not necessary, either because the Member States were already in full compliance by virtue of executing EU regulations implementing the treaty on the basis of the Union’s ratification,53 or on the basis that Council approval of the

48 The meaning of the ratification of a mixed agreement by the MS is not entirely clear to the outsider. From informal discussions, it appears that at least some MS may consider their ratification to apply only to those portions of the agreement falling within national competence as determined by European law. In the US view, however, unless the treaty (including declarations of competence) clearly establishes specific bounds to the respective responsibility of the Union and the MS, both the EU and MS are fully bound as a matter of law by all provisions of the agreement 49 Apparently motivated by a desire to ensure the earliest possible entry into force of the UNESCO Convention on Cultural Diversity, for example, on 18 December 2006 the then Community submitted its ratification and those of 12 MS, bringing the total number of ratifications over the 30 necessary for its entry into force even before a substantial number of MS had ratified. 50 The ratification process can take a decade or more, becoming ‘something of a surrealistic event with an EU of 25 or more states’; Maresceau, above n 28, 208. 51 In that case, working groups are now meeting, and acting in ways consistent with the agreement. There has been no suggestion that delays in ratification relate to substantive issues. 52 The US has no separate doctrine of provisional application, and can agree to provisional application only when sufficient domestic authority exists that the agreement could be entered into without Senate or other additional Congressional action. 53 This was argued in the context of the Beijing Amendment with respect to MS ratifications that remained unsubmitted more than four years following the Amendment’s entry into force. The problem was made more acute because the Parties, including the then Community, had agreed in a stop-gap decision that the MS in question would be considered non-Parties (Montreal Protocol

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Peter M Olson agreement in question provided a sufficient basis for the Union to ratify on behalf of Member States.54 Such unfortunate attempts serve only to raise anew questions of whether the party status of Member States is simply a façade based on a technicality of internal European law, but in fact barely concealing the fact that the Union is the only real EU party. IV.

CONCLUSION

Mixed agreements are only a small part of the EU’s partners’ treaty-making practice, but one that creates a disproportionate share of problems. The difficulties mixity creates may seem less striking to Europeans accustomed to operating in a legal environment in which the uncertainties about competences and other issues associated with mixity are not particularly unusual. They are, however, both novel and substantial for the EU’s treaty partners. With the exception of their basic importance as a mechanism to ensure that the EU is able to fully carry out its rights and obligations under a treaty, mixed agreements provide few, if any, benefits for the partner. Mixed agreements are the product of the EU’s history and constitutional arrangements. Whether the EU’s treaty partners like them or not, they are an important and, at least for the foreseeable future, inescapable feature of the international legal landscape, and one which the EU’s treaty partners have little choice but to deal with. The Union and Member States expect their treaty partners to accommodate the unique problems associated with mixed agreements—but in doing so, those partners enter onto unfamiliar and uncertain terrain. Normal assumptions about the authority and capability of negotiating partners do not apply. Partners cannot elicit clear statements of competence and, even where they may have a relatively good idea of where competence lies, the effects of divided competence on implementation or on responsibility and liability remain unclear. Mixity at times serves as a vehicle to permit the Union or Member States to demand inappropriate concessions. Mixity denies partners the legal certainty which they have the right to expect. Decision of the Parties XV/3, Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer (UNEP 2006) at 153), and because none of the EU MS had given notice of their intent jointly to fulfil certain treaty obligations, as required by Art 2(8)(c) of the Montreal Protocol. 54 This approach was attempted, for example, in the case of the International Cocoa Agreement 2001, done at Geneva, 2 March 2001, entered into force 20 November 2005, Doc TD/COCOA.9/7, in 2003. In that case, the UN Office of Legal Adviser, as depositary, rejected the approach as inconsistent with international law in the absence of specific treaty provisions authorising such ratification or of full powers from the MS on whose behalf the then Community purported to ratify, UN Juridical Yearbook 2003, at 546–53. Even if this attempt had succeeded, it is difficult to see how the ratification could have been effective with respect to the MS competences the existence of which necessitated the mixed format in the first place—but which would normally not have been identified to treaty partners, who would thus be left in the dark with respect to which provisions were not to be given effect due to lack of MS ratification.

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Mixity from the Outside Too often, the EU (and its Member States) appears to consider itself as having no responsibility to address these problems—its representatives even, at times, appear to view partners’ confusion over mixity as presenting useful tactical opportunities to achieve their negotiating objectives. The EU’s daily functioning is dependent on respect for law and legal structures. As a mature participant in international affairs, it must take greater responsibility for identifying solutions to the problems its internal constitutional innovations cause for others. Declarations of competence, although perhaps well intentioned, do not come close to accomplishing their ostensible purpose of providing legal certainty and clarity, and are often ignored or the source of frustration to the EU’s treaty partners. As Union competences grow, the EU must—perhaps by more aggressive use of EU authorities to enter into agreements based entirely on Union competence rather than by taking the easy road of mixity—find a way seamlessly to assume responsibility on the international plane for the entirety of the undertakings contained in agreements to which it becomes party. If it is unable to assume full international responsibility for enforcing all provisions of mixed agreements then the EU owes its treaty partners both a clear explanation of the significance of the internal allocation of competence for external responsibility for ensuring performance, and a commitment to the active use of the Commission’s authority to bring infringement proceedings, to the extent possible, to ensure performance not only in its own interest but in that of foreign Parties. It must realise that ECJ judgments may significantly affect the interests of non-EU States and open up the Court’s procedures so as to permit them to express their concerns directly. It should accept the need to address issues such as voting and languages more seriously, rather than exporting to the EU’s partners the costs of its own preference for avoiding uncomfortable internal constitutional or political conflicts. Quite aside from the issues discussed above, there is a reverse side to the inconvenience of mixity. The fact that the Union is ‘competent’ only to the extent that Member States have positively granted such competence under European law calls into question the wisdom of entering into an agreement solely with the Union given the wealth of implicit obligations inherent in most treaties. While there are certain areas, eg, external trade, in which EU treaty making may raise no issues of Member State competence, it seems likely that — particularly as the range of subject matters addressed by EU treaty making grows — most treaties signed by the Union will at least touch on areas that remain within the competence of the Member States. And in that case, however inconvenient mixed agreements may be, it may be the part of prudence for the EU’s treaty partners to insist on mixity to ensure that they remain in direct treaty relations with all the entities that will be responsible for either exercising the rights or carrying out the obligations of the treaty. A further difficulty for treaty partners, also not discussed here, results from the impact of mixity on agreements concluded by Member States alone, in light of 347

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Peter M Olson subsequent shifts in competence within the EU. While the shift of sovereignty to the Union does not eliminate a Member State’s obligations under international law, that shift is very likely to impede the Member State’s ability to fulfil those obligations. And, to the extent that the Union deems the obligations inconsistent with EU law, it can (and does) argue that the Member State must either annul the agreement or renegotiate it. The integration of European nation States and their transfer of competence to a still-novel supranational entity exercising sovereign powers, constitute an extraordinary, and legally extraordinarily complex, undertaking. An undertaking of such audacity inevitably brings with it uncertainties and difficulties, and mixity is among those challenges. The fact that such challenges are inevitable does not, however, relieve the EU of responsibility for minimising and facilitating the adjustments it asks its partners, and ‘traditional’ international law, to make in response to the novelty it has created, and is still in the process of creating.

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18 Mixity in the Era of the Treaty of Lisbon ALAN DASHWOOD

T

HE FOUNDATIONAL TREATIES of the European Union, in the form they will take following the entry into force of the Treaty of Lisbon, will remain, as they have been hitherto, silent on the topic of mixed agree-

ments. I have always thought it would be an advantage to establish a simplified procedure for the collective exercise of Member State competences in the framework of a mixed agreement, avoiding the necessity of individual ratifications. This could be done by way of a Treaty provision to the effect that international agreements to which the EU is also a Party may be concluded by unanimous decision of the Council and of the Representatives of the Governments of the Member States meeting within the Council. Reticence that might be felt by certain Member States, owing to constitutional requirements of parliamentary ratification, could be addressed by a provision similar to former Article 24(5) TEU.1 However, this idea has never been taken up. There is nothing, therefore, in the Treaty of Lisbon that can be seen as deliberately designed either to facilitate or to impede recourse to mixity as a tool of EU external action. Nevertheless, certain of the constitutional innovations the Treaty will bring about are liable to have incidental consequences for the law and practice of mixed agreements. The consequences thought likely to have the greatest impact—though for the time being such judgments remain necessarily speculative—will be the subject of the discussion that follows. Since the focus is

1 According to former Art 24(5) TEU: ‘No agreement shall be binding on a Member State whose representative in the Council states that that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally’.

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Alan Dashwood on the implications of Treaty changes for the employment of the mixed agreement technique, rather than upon the changes themselves, the discussion of the latter may occasionally appear summary.2

I.

THE NEW TREATY AND UNION STRUCTURE

A first change to consider is the fundamental re-organisation of the existing EU and EC Treaties by the Treaty of Lisbon, which results in an integral Union structure, but one in which the particularity of the common foreign and security policy (CFSP) is to be preserved. The Convention on the Future of Europe opted for the model of a single Treaty incorporating the rules, both institutional and substantive, of the Union’s written constitution within a single instrument. The Treaty establishing a Constitution for Europe would have replaced the present TEU and EC Treaty, which were to be repealed, along with all amending and accession Treaties. In contrast, the regime of the Treaty of Lisbon sees the TEU3 and the EC Treaty (renamed ‘Treaty on the Functioning of the European Union’ or TFEU) remaining as separate legal instruments, while altering the relationship between them, and hence the structure of the constitutional order. The European Union is explicitly recognised by Article 1, third paragraph TEU (AA) as being ‘founded on the present Treaty and on the [TFEU]’, which are stated to have ‘the same legal value’, and there is a parallel provision in Article 1(2) TFEU. It is further provided by Article 1, third paragraph TFEU that the Union ‘shall replace and succeed the Community’, and all references to the Community throughout the TFEU have been replaced by references to the Union4; while the various indications in the TEU as to the primacy of the Community model of governance5 have similarly been eliminated. Thus, unlike the EC Treaty, the TFEU no longer, in itself, amounts to ‘the constitutional charter of a Community based on the rule of law’6; neither can it any longer be regarded, together with the EURATOM Treaty, as having ‘established a new legal order’7 which provides the foundation of the Union as a whole.8 Instead, the two Treaties have been re-designed as complementary instruments of equal status, fulfilling different functions in setting forth the primary positive law of the Union. The evident intention is to bring together in the TEU (AA) the core 2 For a comprehensive analysis of the institutional aspects of the Lisbon reforms, see M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, not Hearts’ (2008) 45 CMLRev 617. 3 The TEU as amended by the Treaty of Lisbon will be referred to hereinafter as ‘the TEU (AA)’, to distinguish it from the pre-Lisbon Treaty. 4 See Treaty of Lisbon, Art 2, point (3) (a). 5 See Art 1, third para TEU; Art 2, fifth indent TEU; and, most notably, Art 47 TEU. 6 Opinion 1/91 EEA I [1991] ECR 6079, para 21. 7 Ibid. 8 Cf Art 1, third para TEU.

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Mixity in the Era of the Treaty of Lisbon constitutional principles that define the essential nature of the EU, while consigning to the TFEU the legal bases for concrete policies, as well as more detailed institutional, procedural and financial provisions. To this end, there is an extensive re-allocation of subject matter between the Treaties. For instance, the principles of conferral, of subsidiarity and of proportionality, formerly located in Article 5 EC, which limit the competences of the Union and organise their exercise, are transferred (with amendments) to the TEU,9 as also are the provisions of Title I of Part Five of the EC Treaty defining the composition and constitutional role of the Union’s institutions.10 On the other hand, police and judicial cooperation in criminal matters (PJC), previously the subject of Title VI TEU, is incorporated into the Title of the TFEU relating to the area of freedom, security and justice.11 The symmetry of the new Treaty design is somewhat compromised by the retention in the TEU of a Title V containing in its Chapter 1 general provisions on the Union’s external action, and in its Chapter 2 specific provisions relating to the CFSP, including a section on the common security and defence policy. The explanation for keeping the CFSP within the TEU, isolated from the legal bases for action by the Union in other areas of substantive policy, lies presumably in the desire to emphasise that the competence of the Union in this domain is different in kind from the competences defined by Title I of the TFEU.12 The continuing specificity of the CFSP is given expression, moreover, in institutional and procedural arrangements that remain strongly differentiated from those applicable under the Treaties generally. The question arises whether the notion of ‘cross-pillar mixity’ (the joint exercise of Community competence(s) with Union competence for the CFSP and/or PJC), as distinguished from ‘classic mixity’ (the joint exercise of Community/Union competences with the external powers of the Member States), continues to be a useful analytical tool, once all of the competences conferred by the Treaties belong to the Union.13 Clearly, the notion ceases to be applicable to an international agreement combining elements formerly within the competence of the Community (trade and development cooperation, say) with elements formerly covered by the third pillar. The re-location of judicial cooperation in criminal matters and police cooperation to the area of freedom, security and justice brings those matters within the general category of Union competence that is shared with the Member States, as provided for by Article 2(2) and Article 4 TFEU.14 However, it is submitted, preservation of the particularity of the CFSP means that the exercise of CFSP competence alongside one or more 9

Art 5 TEU (AA). Title II TEU (AA). 11 Title V TFEU. See ch 4 on judicial cooperation in criminal matters and ch 5 on police cooperation. 12 Regarding CFSP competence, Art 2 (a) TFEU merely cross-refers to the TEU. 13 See chapter three by Ramses Wessel in this volume. 14 See, in particular, Art 4(2)(j) TFEU. 10

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Alan Dashwood of the competences conferred by legal bases in the TFEU will continue to raise special issues, which it is useful to highlight. The appropriateness of the designation ‘cross-pillar mixity’ is a different matter; it might be thought to anticipate the outcome of the debate whether the Treaty of Lisbon establishes a two-pillar Union or abolishes the ‘pillars’ altogether, which is for another occasion.15 I have a preference for the term ‘CFSP/TFEU mixity’, which is clear and accurate, and without prejudice to the character of the reconfigured Union. Having hitherto shown scant enthusiasm for cross-pillar mixity, are the Union’s Institutions likely to be any more willing in the future to opt for a solution involving CFSP/TFEU mixity—for instance, where an association agreement includes elements of foreign policy and security? There are two reasons for cautious optimism on this score. In the first place, the troubling metaphysics of a Union with a separate Community persona have been swept away. An integral Union has, as a corollary, a single legal personality16 with capacity to enter into international agreements across the whole spectrum of competences conferred by the Treaties.17 There is no longer any mileage in the argument that classic mixity is a solution more readily intelligible by the Union’s international partners than cross-pillar mixity requiring conclusion of an agreement by the EC as well as by the EU. Secondly, and more significantly, issues going to the negotiation and conclusion of mixed CFSP and TFEU agreements, which might otherwise have been taken as indicators of the incompatibility of the legal bases concerned, have been rather elegantly addressed in the new procedural code laid down by Article 218 TFEU. Article 218(3) settles the issue as to the right of initiative: if the agreement envisaged relates ‘exclusively or principally’ to the CFSP, it is for the new-style High Representative to submit recommendations to the Council; while in all other cases (including, presumably, where foreign and security policy is a significant but not the principal component of the agreement), the task is for the Commission. The paragraph goes on to provide that the Council ‘shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union’s negotiator or the head of the Union’s negotiating team’. The phrase ‘depending on the subject of the agreement’ must, it is submitted, be understood as referring to the same criteria as those that determine the right of initiative; so it is the Commission that

15 I suggested in evidence to the House of Lords Constitution Committee that the Treaty of Lisbon will reduce the three pillars of the present structure to two: see House of Lords, Constitution Committee, 6th Report of Session 2007–2008, European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution (HL Paper 84) 16. Since then I have become doubtful whether this analysis is compatible with the clear intention on the face of the Treaty to establish an integral constitutional order. 16 Art 47 TEU (AA). 17 Art 216 TFEU.

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Mixity in the Era of the Treaty of Lisbon negotiates mixed CFSP/TFEU agreements, except those in which the CFSP element is predominant, where the High Representative is the negotiator. Pursuant to Article 218(6), at the stage of concluding an agreement the designated negotiator is responsible for putting forward a proposal to the Council. The European Parliament has a formal role in the conclusion procedure in all cases except where the agreement relates exclusively to the CFSP. In respect of mixed CFSP/TFEU agreements, therefore, the situation of the Parliament will be the same as it would be if the agreement fell to be concluded purely on legal bases contained in the TFEU: where any of the conditions listed under point (a) of Article 218(6) apply, its assent is required; in other cases, the Parliament has to be consulted, with a power for the Council, as formerly, to set a time-limit for the delivery of Parliament’s opinion, depending on the urgency of the matter. The voting rule for the Council is laid down by Article 218(8) TFEU. The normal rule of qualified majority voting (QMV) is displaced, among other situations, ‘when the agreement covers a field for which unanimity is required for the adoption of an act of the Union’. So, unless the CFSP elements of a mixed agreement fall within one of the derogations in Article 31(2) TEU that allow the Council to act by QMV, the agreement as a whole would have to be concluded by unanimity. It would make no sense for this requirement to be seen as grounds for avoiding mixity in a case where the applicable TFEU legal bases provided for decision making by QMV, since the alternative solution of proceeding by way of classic mixity would call for common accord among the Member States. Decisions on the suspension of an agreement, or establishing positions to be adopted on the Union’s behalf in a body set up by an agreement which is capable of acting with legal effects, are to be taken by the Council ‘on a proposal from the Commission or the High Representative’. This should, it is submitted, be interpreted as a cross-reference to the rule on the right of initiative in Article 218(3), which also determines who should be designated as negotiator. So, once again, the allocation of the task to either the Commission or the High Representative depends on the preponderance of elements within a CFSP/ TFEU agreement. In my submission, therefore, in the integral Union created by the Treaty of Lisbon, there are stronger practical grounds than previously for preferring what will then be CFSP/TFEU mixity to classic mixity.

II.

EXCLUSIVE UNION COMPETENCE

The possibility of recourse to the technique of classic mixity depends under the regime of the Treaty of Lisbon, as it did before, upon the legal rules governing the interplay between external competences of the EU and the powers of external action that Member States enjoy as full subjects of the international legal order. An attempt has been made to codify those rules among the new provisions of Title I TFEU defining the ‘categories and areas of Union competence’. Any 355

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Alan Dashwood extension of the Union’s exclusive competence pursuant to the Treaty of Lisbon would automatically limit the scope for employing the classic mixity technique in the future. There are two sub-categories of exclusive Union competence to be considered: the a priori exclusivity that applies in a small number of policy areas identified by Article 3(1) TFEU, which is a necessary incident of the particular activity in question; and supervening exclusivity, through the operation of the so-called AETR and Opinion 1/76 principles, in areas where ordinarily the Union shares competence with the Member States.

A. A priori exclusivity The policy areas in which Union competence is recognised by Article 3(1) TFEU as a priori exclusive are: a) the customs union; b) the establishing of the competition rules necessary for the functioning of the internal market; c) monetary policy for the Member States whose currency is the euro; d) the conservation of marine biological resources under the common fisheries policy; and e) the common commercial policy (CCP). The list is uncontroversial. I have noted elsewhere that the reference to competition rules necessary for the functioning of the internal market is technically inept, because none of the Member States would be capable individually of laying down rules applicable across the whole of the internal market.18 Otherwise, these are policy areas where the exclusivity of the (then) Community’s competence was recognised by the Court of Justice decades ago (the CCP19 and fisheries conservation20), or where no other solution would make any sense (the customs union and monetary policy). In the areas of a priori Union exclusivity the only significant change the Treaty of Lisbon brings is in relation to the CCP. Ever since Opinion 1/75, this has been regarded as a paradigm case of exclusive Community competence. Nevertheless, the partial reversal of Opinion 1/9421 secured by the Treaty of Nice, through the introduction into Article 133 EC of new paragraphs (5) to (7), was purchased at the cost of recognising certain categories of commercial agreements to which the usual exclusivity principle would not apply (as neither would QMV, another hallmark of the ‘traditional’ CCP). 18 A Dashwood ‘The Relationship between the Member States and the European Union/European Community’ (2004) 41 CMLRev 355 at 371. 19 The earliest authority is Opinion 1/75, Local Cost Standard [1975] ECR 1355. 20 The earliest authority is Joined Cases 3, 4 and 6/76 Kramer [1976] ECR 1279. 21 WTO [1994] ECR I-5267.

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Mixity in the Era of the Treaty of Lisbon In Opinion 1/94 the Court of Justice held that, while ‘cross-frontier supplies of services not involving any movement of persons’ fell within the CCP, as it was then defined by Article 113 EC, the other three modes of supply of services identified in Article I(2) of the GATS, ‘consumption abroad’, ‘commercial presence’ and ‘presence of natural persons’, were beyond its scope.22 As for the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs), apart from its provisions on the release into free circulation of counterfeit goods, where the connection with international trade in goods was patent, the Agreement was similarly held to be outside the CCP, because it was primarily concerned with strengthening and harmonising the protection of intellectual property on a worldwide scale; if harmonisation of intellectual property rules within the Community could be achieved through the exercise of the exclusive competence conferred by Article 113 EC, the institutions would be able to escape the constraints on internal legislation, to which they are subject with respect to procedures (eg co-decision under the then Article 100a) and to voting rules (eg unanimity under the then Articles 100 and 235).23 Article 133(5) EC, first subparagraph, provided that the first four paragraphs of the Article shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.

The evident intention was to extend Community competence so as to cover international agreements on the three modes of supply of services, as defined by the GATS, that were found in Opinion 1/94 to be outside the ‘traditional’ CCP, as well as agreements harmonising intellectual property protection at the international level, with a view to facilitating trade, in the sense of the TRIPS.24 However, this extension of the scope of CCP competence was hedged about by the qualifications in the three subparagraphs that followed. As Panos Koutrakos has remarked on the Nice amendments: ‘The latter clearly focused on endowing the Community with express competence, albeit in a heavily circumscribed manner’.25 The second and third subparagraphs of Article 133(5) EC, identifying situations where the unanimity rule applied, are of no direct relevance for present purposes. However, the fourth subparagraph provided:

22

Ibid, paras 42–47. Ibid, paras 54–60. 24 This, in spite of the different terminology employed in Art 133(5): ‘commercial aspects of intellectual property’, as compared with ‘trade-related aspects of intellectual property’. 25 P Koutrakos, EU International Relations Law (Oxford, Hart Publishing, 2006) 71. 23

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Alan Dashwood This paragraph shall not affect the right of Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.26

The meaning of that provision, interpreted in the light of the words used and in its context, seems crystal clear. Unlike the Community’s competence in the ‘traditional’ sphere of commercial policy covered by Article 133(1) to (4) EC, the competence conferred by Article 133(5) EC, first subparagraph, was not a priori exclusive.27 In the matters to which the paragraph relates, it was expressly recognised that the Member States were at liberty both to continue as Parties in their own right to existing agreements (like the WTO) and to enter into new agreements, so long as these were compliant with Community law and with any other international agreements that may be relevant. It is thought that the reference to compliance with Community law should be understood as referring to, among other things, the rules derived from the duty of loyal cooperation in former Article 10 EC (replaced in substance by Article 4(3) TEU) that restricted autonomous action by the Member States in policy areas where competence is shared with the Community.28 Subject to that qualification, it follows that, under the regime of Article 133 EC as amended by the Treaty of Nice, classic mixity remained an option for concluding agreements in the fields to which paragraph (5) of the Article applied.29 A different, and unique, form of mixity applied to agreements in the service sectors listed in the second subparagraph of Article 133(6) EC, namely those relating to trade in cultural and audiovisual services, educational services, and 26

Emphasis added. The non-exclusive character of the competence conferred by Art 133(5) has been recognised by the leading academic authorities. See H Krenzler and C Pitschas, ‘Progress or Stagnation? The Common Commercial Policy after Nice’ (2001) 6 European Foreign Affairs Review 291 at 306; M Cremona ‘A Policy of Bits and Pieces? The Common Commercial Policy After Nice’ (2001) 4 Cambridge Yearbook of European Legal Studies61, 84; C Herrman ‘Common Commercial Policy after Nice: Sisyphus Would Have Done a Better Job’ (2002) 39 CMLRev 7 at 19; P Eeckhout, External Relations of the European Union—Legal and Constitutional Foundations (Oxford, Oxford University Press, 2004) 51; Koutrakos, above n 26, 71. A contrary view is taken by M Krajewski, ‘External trade law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy?’ (2005) 42 CMLRev 91 at 96. 28 Notably, the AETR principle and the Opinion 1/76 principle, to which I return in section II.B. below. 29 The Commission takes a different view. The possibility of recourse to classic mixity in the framework of the WTO Agreement is being litigated in Case C-13/07 (on the validity of Decisions establishing the position of the Community and its Member States regarding the accession of Viet Nam to the WTO) and Opinion 1/08 (on competence to conclude, pursuant to Art XXI of the GATS, certain Agreements amending the Schedule of specific commitments by the Community and its Member States). In her Opinion in Case 13/07, delivered on 26 March 2009, A-G Kokott concluded that Community competence under Art 133(5) was non-exclusive, while apparently taking the view that such shared competence had to be exercised by the Community either completely or not at all. It would not be appropriate to explore here this startling departure from the orthodox understanding of shared Community and Member State competence, exemplified by the conclusion of the WTO Agreement itself. 27

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Mixity in the Era of the Treaty of Lisbon social and human health services. Such agreements were subject to a special form of shared competence, which means that they could not be concluded by the Community acting alone: external Community competence in the listed service sectors could only be exercised jointly with the Member States. Here, therefore, mixity was a Treaty-imposed necessity, if the Community was to be a party to an international agreement.30 Post-Lisbon, the new legal basis for the CCP, Article 207 TFEU, contains no provision corresponding to the fourth subparagraph of former Article 133(5) EC or to former Article 133(6) EC, second subparagraph.31 In the absence of explicit language preserving shared Union/Member State competence (whether normal or special) in the fields presently governed by those provisions, it seems that the general principle of a priori exclusive Union competence applies, pursuant to Article 3(1) TFEU. Previous possibilities of recourse to classic mixity in agreements relating to these fields is, accordingly, swept away. On the other hand, Article 207(6) TFEU provides: 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.

The function of this provision is similar to that of the first subparagraph of Article 133(6) EC: it is essentially clarificatory (a corollary of the principle of conferral), putting beyond doubt that, broad as it may be, the exclusive competence of the Union for the CCP must not be used in a way that would circumvent limitations on the competences conferred by the Treaties in other policy areas. For example, a commitment could not be made by the Union in the GATS framework, if this were liable to impinge upon the responsibilities of the Member States for the organisation and delivery of health services within the meaning of Article 168(7) TFEU.32 In respect of such matters, if they are to be included in the same agreement as matters falling within the scope of the CCP, classic mixity remains the only available solution.

30 In spite of the wording of Art 133(6), it surely cannot have been intended that the Member States be equally incapable of acting autonomously in the relevant service sectors. The limitation the paragraph imposes is designed to protect the interests of Member States in those sectors, because they are judged to be extremely sensitive politically; that explanation would not justify applying the same limitation to the Member States themselves. 31 The specificity of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as in the service sectors to which Art 133(6) currently applies, and in the new CCP field of foreign direct investment, will be preserved, to a limited extent, by the unanimity requirements in the second and third subparagraphs of Art 207(4). 32 Cf Art 152(5) EC.

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Alan Dashwood B. Supervening exclusivity through operation of the AETR and Opinion 1/76 principles These principles, developed in the case law of the Court of Justice, are too familiar to require much explanation. Both are derived from the duty of loyal cooperation imposed on Member States by former Article 10 EC (replaced, in substance, by Article 4(3) TEU). Through their operation, the principles render the external relations competence of the Community exclusive in policy areas, such as transport, where it would otherwise be shared with the Member States. According to the AETR principle, once Community competence has been exercised through the adoption of provisions laying down common rules, the Member States no longer have the right, acting individually or collectively, to undertake international obligations towards third countries that might ‘affect’ those rules.33 There is a complex and growing case law as to what constitutes an ‘AETR effect’.34 According to the Opinion 1/76 principle, as it was formulated by the Court of Justice in Opinion 1/94, the Community enjoys exclusive external competence in the (rare) circumstances where its internal and external competences are so ‘inextricably linked’ that the one can only be exercised effectively at the same time as the other.35 The relevance of the two principles for present purposes is that, where either of them applies, recourse to classic mixity is precluded with regard to the agreement (or elements of the agreement) in question.36 Article 3(2) TFEU seems to have been designed to enact those principles as positive primary Union law: 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 in so far as its conclusion may affect common rules or alter their scope.

This poorly-drafted provision raises a variety of issues. Two at least call for brief consideration here, since they could have a bearing on the scope for recourse to classic mixity in the future. First, what is the meaning of ‘necessary’ in the paragraph? Is this simply an incompetent rendering of the Opinion 1/76 principle; or is the intention to relax 33

Case 22/70 AETR [1971] ECR 263, paras 17, 18 and 22. The leading cases are, besides AETR: Opinion 2/91 ILO [1993] ECR I-1061; Opinion 2/92, Third Revised Decision of the OECD on National Treatment [1995] ECR I-525; Opinion 1/94 WTO [1994] ECR I-5267; Case 467/98 Commission v Denmark (Open Skies) [2002] ECR I-9519; Opinion 1/03 Lugano Convention [2006] ECR I-1145. 35 Opinion 1/76 Laying-up Fund [1977] ECR 742; Opinion 1/94 WTO [1994] ECR I-5267. See my analysis of the origin of the principle with Joni Heliskoski, ‘The Classic Authorities Revisited’ in A Dashwood and C Hillion (eds), The General Law of EC External Relations (London, Sweet & Maxwell, 2000) para 1.15. 36 As was the case, for instance, where the Court of Justice found that a novel conception of the AETR effect brought the new Lugano Agreement entirely within the Community’s exclusive competence: Opinion 1/03, above n 35. 34

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Mixity in the Era of the Treaty of Lisbon the requirement of inextricable linkage such that internal and external competences cannot be exercised separately, which was stipulated in Opinion 1/94? Is the intention, in other words, to adopt the weaker sense of necessity—one of ‘facilitation rather than indispensability’, as I have described it37—which, the case law indicates, applies when the issue is whether external competence arises by implication in order to complement expressly conferred internal competence in a certain policy area?38 If so, that would mean that every case of implied external Union competence would automatically entail exclusivity, a significant extension beyond the present Opinion 1/76 principle. Secondly, is it intended to take on board the whole of the case law on what it means to ‘affect common rules or alter their scope’ for the purposes of the AETR principle? One set of issues concerns the limits that apply to an AETR effect. For instance, is exclusivity pursuant to Article 3(2) TFEU similarly subject to the ‘minimum standards principle’? Under that principle, first recognised in Opinion 2/9139 and recently confirmed in the MOX Plant case,40 where Community competence is restricted to setting minimum standards, the existence of common rules does not prevent Member States from entering into an international agreement which itself imposes such standards; there is no AETR effect, since the commitments given by the Parties to the agreement would not inhibit the power of the Union to establish standards that were more or less stringent. There are also some policy areas, such as development cooperation and humanitarian aid, where Union and Member State competences are acknowledged to be perfectly parallel, owing to the non pre-emptive character of the activities in question; the fact that the Union may have taken certain action does not prevent the Member States from acting on the basis of their national competences in respect of the same matters, and vice versa.41 The parallel nature of Union and Member State competences in those areas is explicitly preserved by Article 4(4) TFEU, and extended by Article 4(3) to the areas of research, technological development and space. However, it remains a question whether those provisions apply to international agreements within the meaning of Article 3(2) TFEU, or only to unilateral measures taken by the Union.

37 Dashwood, ‘The Attribution of External Relations Competence’ in Dashwood and Hillion, above n 36, at para 8.17. 38 This is, presumably, the sense of ‘necessary’ in Art 216(1) TFEU, which lists the conditions under which the Union is authorised to enter into international agreements. On the principle of complementarity (which other commentators refer to as ‘parallelism’), see the pieces cited above in nn 36 and 38, at para 1.17 and paras 8.13–8.16, respectively. 39 ILO, above n 35, paras 18–21. 40 Case C-459/03 Commission v Ireland (MOX Plant) [2006] ECR I-4635. 41 Case C-181/91 European Parliament v Council and Commission (Bangladesh) [1993] ECR I-3685; Case 316/91 European Parliament v Council (EDF) [1994] ECR I-625.

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Alan Dashwood Another issue is whether the effect on common rules that is referred to in Article 3(2) TFEU corresponds to the extended meaning given to an AETR effect in the Lugano Opinion of the Court of Justice, where it was said: it is not necessary for the areas covered by the international agreement and the Community legislation to coincide fully. Where the test of an ‘area which is already covered to a large extent by Community rules’ … is to be applied, the 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 only the current state of Community law in the area in question but also its future development, insofar as that is foreseeable at the time of the analysis . . .42

Without attempting fully to explicate that passage, especially the gnomic reference to the future development of Community law, it is obvious that supervening exclusivity under the AETR principle is not confined to those elements of an international agreement that cover the same ground as existing common rules. What, then, are we to make of the provisions of Article 2(2) TFEU setting limits to action by the Member States in areas in which competence is shared with the Union—precisely where the AETR principle operates? According to Article 2(2), in an area of shared competence, ‘[t]he Member States shall exercise their competence to the extent that the Union has not exercised its competence’. The nature of the constraint thus placed upon Member States is clarified by the Protocol on the exercise of shared competence, which states: when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.

Are we to read Article 3(2) TFEU as a lex specialis applicable to international agreements? Or should it be read together with Article 2(2) TFEU and the Protocol, as meaning that exclusive Union competence is to be confined to ‘those elements [of an agreement] governed by the Union act in question’? The latter would represent a retreat from the position taken by the Court in Lugano. Article 3(2) TFEU is an object lesson in the unwisdom of seeking to enshrine in a Treaty provision subtle concepts that have been developed, and are still developing, in the case law. Some of the issues I have raised seem likely to be resolved only through litigation. If the answers to my questions have as a consequence either the extension of the scope of exclusive Union competence, or its contraction, as compared with the situation presently resulting from the operation of the AETR and Opinion 1/76 principles, there will be a corresponding contraction or extension of the scope for recourse to classic mixity. One point seems clear, however. The Treaty Establishing a Constitution for Europe contained a provision identically worded to Article 3(2) TFEU in its Article I-13(2). Because of its location among the foundational principles of the

42

Above n 35, at para 126, citing Opinion 2/91, ibid., paras 25 and 26.

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Mixity in the Era of the Treaty of Lisbon constitutional order in Part One of the Treaty, that provision might have been interpreted as applying to the CFSP as well as to the other aspects of the Union’s external action. The re-organisation of the Treaties by the Treaty of Lisbon would, it is submitted, preclude such an interpretation of Article 3(2) TFEU: Union competence for the CFSP pursuant to Title V, Chapter 2 of the TEU (AA) is different in kind from the competences defined by Articles 3 to 6 of the TFEU.43 So it is not going to be possible to argue that, pursuant to Article 3(2), the elements of an international agreement relating to foreign or security policy have to be concluded under Union competence (and thus by way of CFSP/TFEU mixity), rather than under Member State competences (and thus by way of classic mixity).

III.

BLURRING THE BOUNDARY BETWEEN UNION COMPETENCES

There are two Treaty changes liable to have the effect of blurring the boundary between the competences conferred on the Union by different legal bases in the TEU (AA) and the TFEU: a) A common list of objectives for the Union’s external action. The Union is enjoined to pursue the objectives set out in Article 21(2) TEU (AA) ‘in the development and implementation of the different areas of [its] external action covered by this Title and by Part Five of the [TFEU], and of the external aspects of its other policies’. Whatever the external competence in question, therefore, all of the listed objectives are capable in principle of bearing some degree of relevance to its exercise; while they will not, of course, have the same degree of relevance, the choice between legal bases may in future appear less clear-cut than under the previous dispensation. b) Abolition of the hierarchy between the ‘pillars’. The primacy previously given by the TEU to the first pillar is not replicated in the new constitutional order. Former Article 47 TEU is replaced by Article 40 TEU (AA), which makes clear that CFSP competences and the Union’s other competences are to be equally protected against each other: the first paragraph of the new Article provides that ‘the implementation of the [CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union’s competences referred to in Articles 3 to 6 of the [TFEU]’; while the second paragraph provides that ‘[s]imilarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of

43 There is textual support for this analysis in the drafting of Art 40 TEU, which contrasts CFSP competence with ‘the Union competences referred to on Articles 3 to 6 of the Treaty on the functioning of the European Union’.

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Alan Dashwood the powers of the institutions laid down by the Treaties for the exercise of the Union’s competences under this Chapter’.44 Those changes are capable of having an impact on both classic mixity and CFSP/TFEU mixity. So far as concerns classic mixity, the impact seems most likely to be felt at the interface between exclusive Union competence for the CCP and shared competence for the protection of the environment. There has been a series of cases in which it has been an issue between the Commission and the Council whether the correct legal basis for an international agreement, and/or for legislation implementing an agreement, was Article 133 EC on its own (now Article 207 TFEU), Article 175 EC (now Article 192 TFEU) on its own or the two Articles combined.45 This is a matter of cardinal importance to Member States, since they generally wish to be Parties to environmental agreements, not least because of their right, preserved by Article 176 EC (Article 193 TFEU), to introduce more stringent protective measures than may have been adopted by the Community. In the light of recent experience,46 it will not be surprising if the Commission seeks to exploit the blurring of boundaries resulting from the common list of objectives in Article 21(2) TEU (AA) by arguing that CCP powers can perfectly well be used for the purpose of furthering environmental protection, in order to exclude or limit the possibility of a mixed agreement solution. So far as concerns CFSP/TFEU mixity, the competence boundary most likely to be affected is that between development cooperation47 and general economic, financial and technical cooperation,48 on the one hand, and civilian aspects of foreign and security policy, on the other. The possibility of accurately drawing this boundary has already been impaired by the loose conception of development cooperation that was accepted by the Court of Justice in the ECOWAS case49; and a common list of external objectives will only exacerbate this problem, by making it easier to argue that security-related activity can be pursued under the guise of one of the forms of socio-economic cooperation with third countries. The abolition of the hierarchy between the ‘pillars’ will also be a factor in such boundary disputes, since the automatic primacy the Court felt bound to give to

44 Protection will also be given expressly for the CFSP against the creation of supplementary powers under the amended version of Art 308 EC, found in Art 352 TFEU. 45 Opinion 2/00 Cartagena Protocol [2001] ECR I-2793; Case C-281/01 Commission v Council (Energy Star) [2002] ECR I-12049; Case C-94/03 Commission v Council (PIC Convention) [2006] ECR I-107; Case C-411/06 Commission v Council (Shipments of Waste No 2) (pending). 46 The proceedings in Case C-411/06 (above n 45) were clearly a response by the Commission to the perhaps rather surprising finding in the PIC cases that, although the predominant aim of the Rotterdam Convention was the protection of the environment, the regulation of trade was an additional, and not an ancillary, objective, which meant that Art 133 EC ought to have been included in the legal basis. 47 The legal basis for action in the field of development cooperation is Art 209 TFEU (ex Art 179 EC). There is a new legal basis for humanitarian aid, Art 214 TFEU. 48 The legal basis will be Art 212 TFEU (ex Art 181a EC). 49 Case C-91/05 Commission v Council [2008] ECR I-3651.

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Mixity in the Era of the Treaty of Lisbon development cooperation in its ECOWAS judgment will no longer apply. It will be a pity if time and energy are expended in the future on disputes about the choice of legal basis in situations—such as an operation combining a substantial measure of humanitarian aid with monitoring a ceasefire between government forces and former rebels—where CFSP/TFEU mixity would provide a satisfactory solution. IV.

CONCLUSIONS

In the light of the foregoing, it is possible to offer a few, mostly tentative, conclusions as to the effect the entry into force of the Treaty of Lisbon is likely to have on the law and practice of mixed agreements, and to express an equally tentative hope. A first conclusion is that, in an integral Union with a single legal personality, there may be less reluctance on the part of the institutions to employ the technique of CFSP/TFEU mixity than they have shown hitherto about resorting to cross-pillar mixity. Certainly, such reluctance will be less excusable, thanks to the new procedural code in Article 218 TFEU, which anticipates problems associated with the combination of CFSP and TFEU elements within a single agreement, and deals with them sensibly. A second (and firm) conclusion is that the extension of a priori exclusivity to cover the whole area of an enlarged CCP automatically extinguishes some opportunities for recourse to classic mixity that previously existed. How far this affects the possibility for Member States to remain Parties in their own right to the WTO Agreement is an issue for another occasion, since it would require detailed analysis of the whole complex package of WTO instruments. A third conclusion is that the unfortunate drafting of Article 3(2) TFEU, and the failure to clarify its relationship with Article 2(2) and Article 4 TFEU, creates uncertainty as to the scope of the instances of exclusive Union competence there provided for. Depending on the view taken as to the effect of Article 3(2), this may either limit or extend the opportunities for recourse to classic mixity, as compared with the previous situation governed by the AETR and Opinion 1/76 principles. A fourth conclusion is that the establishment of a common list of objectives for the Union’s external action, and the abolition of the hierarchy between the ‘pillars’, is liable to blur the boundaries between Union competences, enlarging the scope for disputes as to whether recourse to mixity of either kind is necessary or appropriate.

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Alan Dashwood Lastly, my hope is that, wearing her two hats, the new-style High Representative50 may prove a dea ex machina, guiding the Council and the Commission towards undogmatic solutions tailored to the needs of an effective external policy, including on the issues I have raised in this chapter.

50 Baroness Ashton’s full title is ‘High Representative of the Union for Foreign Affairs and Security Policy’.

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19 The Future of Mixity ALLAN ROSAS

I.

MIXITY IS HERE TO STAY

I

N TWO ESSAYS on mixed agreements in EU law that I wrote some 10 years ago, I assumed that mixity would still be inevitable in some areas but that it also ‘often makes life more difficult for everybody involved’.1 In areas where mixity cannot be avoided one should at least try to mitigate its negative consequences, for instance by making the duty of cooperation more operational and real. I see no reason today to change this basic conclusion. Mixity is here to stay. But some of its negative effects should be addressed. And in a post-Lisbon European Union of 27, it should also be possible to limit the use of mixed agreements, if possible through a joint search for the common good rather than legal turf battles. In some instances, it could perhaps be agreed at Council level to resort to a pure Union agreement instead of a mixed agreement, without prejudice to the question of exclusive EU competence. That this is easier said than done I was often able to witness at close range when working in the Commission Legal Service during the period 1995–2001.2 Let me recall one of many attempts to avoid the need for separate ratification by the Member States of a bilateral trade and cooperation agreement concluded with a third State. During the preparations, at the end of the 1990s, for an agreement on trade, development and cooperation with South Africa, the Commission argued that the agreement could be concluded then as a Community agreement, so as to avoid a long ratification process on the EU side and more generally practical and legal problems in the application and implementation of

1 A Rosas, ‘Mixed Union—Mixed Agreements’ in M Koskenniemi (ed), International Law Aspects of the European Union (The Hague, Kluwer, 1998) 147–48; 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) 219–20. 2 From January 1996 until March 2001 as a Director and Principal Legal Adviser in charge of external relations.

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Allan Rosas the agreement. The Commission Legal Service pointed out that as the agreement was meant to be an association agreement based on then Article 310 of the EC Treaty (new Article 217 TFEU), it could, in principle, cover all areas of the then EC Treaty insofar as the Council agreed to use this general competence.3 While there was no serious disagreement between the Commission and Council lawyers on the legal aspects involved, the Member States said ‘no’. They did not want the Council to use existing Community competences fully because they preferred to continue the practice of concluding association agreements as mixed agreements. And so the agreement with South Africa was concluded as an agreement between the Community and its Member States ‘of the one part’ and the Republic of South Africa ‘of the other part’. As there was a general wish to apply notably the trade part of the agreement as soon as possible, this and some other parts of the agreement were concluded provisionally by the Community alone.4 The story does not end here, however. After the signature of the Agreement in October 1999, but just before the entry into force, on 1 January 2000, of the provisionally concluded agreement, Italy addressed a letter not only to the Commission and the Council but also to South Africa, calling into question its intention to conclude the main (mixed) agreement.5 By invoking Article 25 of the Vienna Convention on the Law of Treaties,6 Italy argued that its refusal to conclude the mixed agreement prevented the entry into force of the provisionally concluded Community agreement as well.7 On substance, Italy was unhappy with the lack of protection in the agreement of the specific denomination ‘Grappa’, and sought an enhanced status for this product in South Africa, despite the fact that it was not considered a geographical indication in the terms of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs).8 Under international treaty law and EU external relations law, Italy argued that a notification of an intention of an EU Member State not to become a Contracting Party to a mixed agreement has as a consequence that not only the mixed agreement but also the Community agreement concluded provisionally cannot enter into force, as the latter cannot

3 See Case 12/86 Demirel [1987] ECR 3719, para 9, in which the Court held that then Article 310 EC ‘must necessarily empower the Community to guarantee commitments towards non-member countries in all the fields covered by the Treaty’. 4 Council Decision 1999/753/EC of 29 July 1999, [1999] OJ L/311/1. The whole agreement was concluded on behalf of the Community by Council Decision 2004/441/EC of 26 April 2004, [2004] OJ L/127/109. 5 J Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations of the European Community and its Member States (The Hague, Kluwer, 2001) 94, fn 104. 6 According to Art 25(2), the provisional application of a treaty ‘shall be terminated’ if a State notifies the other Parties ‘of its intention not to become a party to the treaty’. 7 I have described this incident in A Rosas, ‘Book Review of J H J Bourgeois et al (eds), La Communauté européenne et les accords mixtes: Quelles perspectives?’ (2000) 37 CMLRev 1010. 8 See Arts 22 to 24 of the TRIPs Agreement.

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The Future of Mixity be separated from the former but is a device to start applying a part of the mixed agreement in anticipation of the subsequent ratification processes in the Member States. The Commission, by invoking the principles of duty of cooperation and unity of external representation, and the fundamentally bilateral character of the agreement, held that the Italian notification could not by itself, and automatically, revoke the provisional application of the Community part of the agreement, which had been decided by the Council five months earlier and was about to enter into force a few days after the Italian Government expressed its new position. The situation was critical, given the legal uncertainties surrounding the applicability of the new trade provisions purported to enter into force provisionally on 1 January.9 After intense negotiations, including with South Africa, at the beginning of the year 2000, the provisional application of the trade and other provisions contained in the Community part of the agreement could be saved after Italy had obtained some concessions relating to the protection of ‘Grappa’, and Greece, which had joined the Italian bandwagon, similar concessions concerning ‘Ouzo’. Following further negotiations with South Africa, an Agreement on Trade in Spirits could be concluded at the beginning of 2002. In accordance with its provisions, South Africa would not allow, after a transitional period, certain ‘specific denominations’ such as ‘Grappa’ and ‘Ouzo’ to be sold on the South African market if they did not originate in the EU.10 This incident, which caused serious legal, economic and political concerns for the Union, the other Member States and South Africa, as well as private traders, does not make a very convincing case for the virtues of mixity. On the other hand, it has to be underlined that it is an exceptional case and that, while some other mixed agreements certainly have caused problems of application and implementation,11 these problems have normally been overcome without too many difficulties. It should also be acknowledged that while the ‘Grappa incident’ suggests that mixity may involve a systemic risk for an orderly conclusion of international agreements and the credibility of the EU as a negotiator, Italy probably saw things

9 The present author, among others, had to devote New Year’s Eve to other activities than oysters and champagne. 10 See Arts 6 and 7 of the Agreement, which was provisionally applied on the basis of Council Decision 2002/54/EC of 21 January 2002, [2002] OJ L/28/131 and concluded by Council Decision 2002/52/EC also of 21 January 2002, [2002] OJ L/28/112. Grappa and Ouzo have also been protected in the agreement between the European Community and Canada on trade in wines and spirit drinks, Council Decision 2004/91/EC of 30 July 2003, [2004] OJ L/35/1. 11 See, amongst others, chapters 14 and 15 in this volume by Ivo van der Steen and Ivan Smyth respectively, as well as G Garzón Clariana, ‘La mixité: le droit et les problèmes pratiques’ in J Bourgeois et al (eds), La Communauté européenne et les accords mixtes: Quelles perspectives? (Bruxelles, Presses Interuniversitaires Européennes, 1997); Rosas, ‘Mixed Union—Mixed Agreements’, above n 1, 133–43; Rosas, ‘The European Union and Mixed Agreements’, above n 1, 207–16; Heliskoski, above n 5, passim.

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Allan Rosas differently. For her, mixity seems to have offered a convenient vehicle to extract last-minute concessions by threatening to use the veto power that the requirement of Member States ratification of mixed agreements entails. One may wonder why the preservation of this veto power was so important for Italy and other Member States, as the agreement with South Africa is an association agreement based on former Article 310 EC (new Article 217 TFEU) and thus required unanimity in the Council. Why could Italy not postpone or prevent the conclusion of the agreement simply by voting, or threatening to vote, against it in the Council? The reason why mixity offers a more effective veto power is twofold. First of all, it may be easier politically to notify a refusal of national ratification than to continue opposing, at the Community level, a Council decision based on a Commission proposal and having the support of all, or practically all, other Member States. Secondly, and more importantly, if the main agreement had been a Community agreement, it would not have been possible to invoke a refusal to support it at Council level in order to block the entry into force of the provisionally applied part of the agreement, which had been concluded earlier.12 In the absence of mixity, Italy alone could not have resorted to the unilateral notification it made under Article 25 of the Vienna Convention; such a notification could only have been made by the then Community, which would have been the only Contracting Party on the EU side.13 The incident, while exceptional, demonstrates the utility Member States may see in mixity. There is a consideration of a more general and ‘strategic’ nature which also plays a role. Member States have generally been concerned that with each Community agreement, practice may be seen as evolving in a ‘Community direction’ and thus away from agreements concluded by the Member States. They may fear that this not only makes it more difficult politically and practically to argue for mixity in future contexts (the power of precedent), but might also pave the way for claims by the Commission that the ‘terrain has been occupied’ in an AETR/ERTA sense.14 The terrain would this time not be occupied by internal EU legislation but by the conclusion of international agreements, which might

12 True, the provisional application of the agreement was also based on former Art 310 EC (new Article 217 TFEU) which required unanimity, as this part of the agreement was not limited to trade in goods (which could have been based on former Art 133 EC – now Article 207 TFEU). In case of opposition from one Member State, however, the part of the agreement provisionally applied could probably have been based on more specific legal bases such as former Art 133 and former Art 179 (development cooperation, new Article 209 TFEU) which provided for qualified majority voting. 13 This is without prejudice to the question as to whether the Italian notification was lawful under Community law even in the context of a mixed agreement. As the problem was ultimately solved at the political level, the European Court of Justice was not asked to rule on the legal aspects involved. 14 Case 22/70 Commission v Council [1971] ECR 263. See also Opinion 1/03 on the competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] ECR I-1145.

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The Future of Mixity induce the Commission to argue that an exclusive Union competence has emerged, making Member States’ participation in the ratification process in their own right legally excluded. While the above considerations relate to the internal lines of demarcation between EU and Member States’ sovereignty and competence, which may be difficult for third States to appreciate or even accept, there is in my view a more objective argument which speaks in favour of mixity: The EU is not a federal State but is based on ‘cooperative federalism’. Its Member States are not seen by the outside world as sub-federal entities but as independent States, albeit members of a larger political and economic bloc. For important agreements, such as some of the association agreements, there may be a political and symbolic advantage in displaying the EU in all its splendour, so that the foreign leaders concerned will be directly confronted not only with the President of the European Council together with Mr Barroso and Ms Ashton, but also with the British Prime Minister, the German Chancellor, the French President and so on. Be that as it may, it is hard to imagine that Member States would in the foreseeable future accept to give up mixity altogether. It is important, then, to ponder what remedies are available to mitigate its negative consequences and also to limit its use to situations where mixity is absolutely necessary for legal or political reasons. II.

LEARNING TO LIVE WITH MIXITY

This book, and the Leiden–Bristol Conference on which it is based, has provided a host of useful ideas as to how both to avoid mixity and to learn to live with it. My own prediction is that, while there may be some 250 agreements which have been concluded as mixed agreements, the importance of mixity will gradually diminish in quantitative terms. This is partly because the expansion of EU secondary legislation into new areas will imply that more and more subject areas will be covered by an exclusive Union competence under the AETR principle,15 as codified in the Treaty of Lisbon (Article 3(2) TFEU). Indeed, at the level of primary law, the entry into force of the new Treaty enhances such developments, notably with respect to the common commercial policy.16 In any case, I would not exclude the possibility that some agreements, which do not clearly fall under an exclusive Union competence but for which there is a so-called ‘potential’ EU competence, could in the future be concluded by the Union alone. This would be a pragmatic solution, adopted without prejudice to the question of exclusive, shared or parallel competence. While vestigia terrent in 15 See notably Opinion 1/03, above n 14, in which the Court concluded that the then Community had an exclusive competence to conclude the new Lugano Convention. 16 See Art 207 of the Treaty on the Functioning of the European Union, [2008] OJ C/115/140, which constitutes a development of Art 133 of the EC Treaty. As to Art 133, as modified by the Treaty of Nice, see opinion 1/08 given by the European Court of Justice on 30 Nov 2009, one day before the entry into force of the Treaty of Lisbon.

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Allan Rosas this area, such pragmatism might be fuelled by the fact that there are now 27 Member States, and at the same time an expanding EU agenda and an increased emphasis, despite all problems and setbacks, on the need for a common front vis-à-vis major third countries and blocs (United States, China, Russia, and so on). In this context, one wonders whether it would be possible to insert in EU primary law a clause similar to the one that has been used with respect to new Member States acceding in 2004 and 2007 concerning their accession to mixed agreements concluded before their accession to the EU.17 The idea would be to grant the Council, at primary law level, the powers to conclude international agreements on behalf of not only the Union but also the Member States. This would provide a flexible ratification procedure which could be carried out quickly, while preserving Member States’ competence as well as their status as Contracting Parties. To the extent that we shall also in the future be confronted with mixed agreements (and the present writer firmly believes that we will), the focus should be on how to make the duty of cooperation18 more operational and real, so as to enhance efficiency, legal security and the credibility of the EU as a partner in international cooperation. I would in this respect single out one overriding question which in my view merits special attention, namely, the need for the simultaneous conclusion, within a reasonable timeframe, of an agreement by the Union and its Member States. In practice, bilateral agreements with third countries are normally concluded by the Union only when all the Member States have submitted their instruments of ratification. In such a situation there should be no particular uncertainties with regard to the binding effect of the agreement for the EU side (ie EU + Member States), given that its entry into force would imply that both the Union and all its Member States are Contracting Parties. The main problem in this context is the delay in the entry into force of the agreement that the requirement of 27 + 1 ratifications (or acts of approval19) may entail. It would certainly be desirable to reach an understanding between the Union and its Member States on

17 See Art 6(2), of the Act of Accession annexed to the 2003 Accession Treaty, [2003] OJ L/236/17 and, eg, the Addition Protocol to the above-mentioned Agreement with South Africa to take account of the accession of Bulgaria and Romania to the EU, [2008] OJ L/22/13, which is based on Art 6(2) of the 2005 Act of Accession. On the situation before the 2004 and 2007 accessions, and the delays in the entry into force of mixed agreements that the accession of Austria, Finland and Sweden could entail, see Rosas, ‘Mixed Union—Mixed Agreements’, above n 1, 134–35; Rosas, ‘The European Union and Mixed Agreements’, above n 1, 208. 18 Ruling 1/78 (IAEA)[1978] ECR 2151, paras 34–36; Opinion 2/91 (ILO) [1993] ECR I-1061, para 36; Opinion 1/94 (WTO) [1994] ECR I-52676, para 108; Case C-25/94 Commission v Council [1996] ECR I-1469. 19 EC conclusion of an agreement is usually termed ‘approval’: D Verwey, The European Community, the European Union and the International Law of Treaties (The Hague, TMC Asser Press, 2004) 114–15.

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The Future of Mixity the conclusion of the agreement without undue delay (although it is true that the device of provisional application mitigates the effects of delays in the entry into force of the full agreement). With respect to multilateral agreements, however, the practice is varied indeed.20 In many cases, the Union concludes the agreement before all the Member States have done so, and in some cases the agreement will never be concluded by all the Member States (‘incomplete mixity’). If the agreement in such a case covers areas which are outside the competence of the Union, ‘the treaty bond would appear to remain incomplete’.21 Such a situation in fact raises serious questions as to the coverage of the treaty relations between the EU and a third State Party to the agreement. If a Member State has not concluded the agreement in question, is the Union responsible for fulfilling the whole agreement, or only the part falling under EU competence? In the latter eventuality, how can the EU side (the EU and its Member States) fulfil all its obligations vis-à-vis third States? It will be recalled that the situation would rarely correspond to a lawful treaty reservation formulated by the EU, as reservations, if allowed at all, have to be specific and should, in case the agreement does not contain explicit rules on the matter, not go against the object and purpose of the agreement.22 If, again, the Union has a potential competence for the entire agreement, but because the competence is not in all respects exclusive the Member States have insisted on mixity, the EU would, it is submitted, at any rate be responsible for the whole agreement, also on the territory of Member States which have not ratified it. A declaration of competence made by the Union and its Member States might change the situation, especially if, as is the case with respect to the UN Convention on the Law of the Sea, the agreement itself regulates the division of competence.23 But if there is no declaration of competence, the question whether a given Member State has or has not ratified the agreement may become legally irrelevant, as the EU would be bound by, and responsible for, the whole agreement, and this would be binding on the Member State as well by virtue of Article 216(2) TFEU (ex Article 300(7) EC).24 20 Rosas, ‘Mixed Union—Mixed Agreements’, above n 1, 133–34, and ‘The European Union and Mixed Agreements’, above n 1, 215–16; Heliskoski, above n 5, 93–94. 21 Heliskoski, above n 5, 92. 22 See Arts 19–22 of the Vienna Convention on the Law of Treaties and, amongst others, F Horn, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague, TMC Asser Instituut, 1988) passim. 23 See Annex IX of the Convention and A Rosas, ‘EU ja kansainvälinen merioikeus’ [‘The EU and the International Law of the Sea’], in T Koivurova (ed), Kansainvälistyvä merioikeus: Juhlakirja Professori Kari Hakapää (Rovaniemi, University of Lapland, 2005) 421–23. True, the Convention contains parts which belong to the exclusive competence of either the Union or the Member States, but there are also parts (notably those concerning the protection of the marine environment) where competence is shared and the EU enjoys a more or less unlimited potential competence (on the latter situation see also Case C-459/03 Commission v Ireland [2006] ECR I-4635). 24 According to that provision, ‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’.

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Allan Rosas Without analysing in greater detail these different scenarios, it is undeniable that they are surrounded by many legal question marks which do not, to put it mildly, enhance legal certainty or the principle of unity of representation. They also raise understandable concerns among third States as to the extent and nature of their treaty relations with the EU. In my humble opinion, it is high time that the Union and the Member States worked out some modus vivendi concerning the conclusion of mixed agreements. Such an arrangement should provide for the conclusion, within a given timeframe, of a mixed agreement by the EU and all the Member States. A clause specifying a basic principle of cooperation could also be included in primary law. If a Member State does not ratify the agreement within the given timeframe, either the agreement does not enter into force on the EU side (if it contains provisions belonging to an exclusive Member State competence), or the Union is considered a Contracting Party for the whole agreement (if there is a potential EU competence covering the entire agreement). In this context, it would seem that far too little is known of Member States’ practices when it comes to the conclusion, entry into force and publication of mixed agreements.25 There seems to be a need for much more research and analysis of this question. Could not, for instance, the Commission and Council Legal Services undertake, or promote, such a study? Lastly, and à propos research needs, there is a category of international agreements which does not fall under the theme of this publication in a strict sense but which also merits attention in a EU law context. I am thinking of agreements concluded by the Member States alone but which present an EU interest, despite the fact that the Union is not a Contracting Party. Such agreements include agreements which are not open for EU accession but concern issues which are regulated in EU legislation or decisions, or provide guidelines for Community action (the UN Charter, conventions sponsored by UN Specialised Agencies, human rights conventions, private international law conventions, etc). As this is a vast and complex area I propose to revert to it more fully at a later stage. As this volume and the conference on which it is based show, mixity is a subject which is more than sufficient in its own right to give us food for thought, discussion and clarification.

25 But see Heliskoski, above n 5, 89–92, who provides some information on the practice of France, Germany, Finland and the United Kingdom.

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Index a priori exclusivity, 356–59 absorption doctrine, 15 abstention, duty of, 47, 91, 93, 99–102, 108, 111, 156–57, 262 action, duty of, 99–101, 156 accession: Acts of, 27, 239–40, 257 agreements, 27 mixed agreements, to, 372 pre-accession agreements, 18–19

environment, and, 219–20 Albania, 234 Algeria, 44, 251 American Constitution, 59–65, 70 Amsterdam, Treaty of, 3, 4, 30, 139, 258 Andean Community, 277 Andorra, 29 apartheid, 22 Ashton, CM, 371 association agreements, 17–20, 191, 241, 277–78, 293, 368, 371 Cyprus, 19 EEA Agreement, 326 Euro-Med Agreements, 19–20 Europe Agreements, 18 Greece, 11, 17, 117 inter-regional, 20 Malta, 19 Member States, and, 17, 18–19 Mercosur, 20 Mexico, 16 political dialogue, 326 pre-accession tools, as, 18 stabilisation agreements see stabilisation and association agreements (SAAs) Turkey, 17, 117 unanimity required, 17, 370 Association of South East Asian Nations (ASEAN), 278 Treaty on Amity and Cooperation, 45,299 attributed competence, 49, 53, 188 attribution of conduct, 215–17, 217–18, 226, 342 Australia, 35 Austria, 25, 240, 258 auto-interpretation of agreements, 189, 190 autonomy of EU legal order: disconnection clauses and, 171–78 ECJ, and, 187–88, 197–99 foundations of, 187–89 international dispute settlements, and, 190–93, 204 safeguarding, 197, 199, 203

see also enlargement of EU adoption of positions under mixed agreements, 138–59 acts and instruments governing, 142–45 circumstances in which Union position must be adopted, 146–54 matters within Union’s exclusive competence, 146–49 matters within Union’s non-exclusive competence, 149–54 establishment of agreed positions when negotiating, 309–13 general legal framework implementing mixed agreements, 140–42 AETR [1971], 6, 8, 356, 360–63, 365, 370–71 duty of cooperation, 100, 111–12 exclusivity and disconnection clauses, 182–85 interpretation of mixed agreements, 126, 131–32 African, Caribbean and Pacific States (ACP), 117, 144–45, 147, 150, 155, 245–46 agreements and European Parliament, 278–80, 293 Caribbean Forum (CARIFORUM), 279, 290 air transport: agreements, 2, 26–27, 283, 296, 258, 263, 332, 345 negotiating, 338

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Index Balkans, Western, 18, 169, 251 Barroso, JM, 371 Belarus, 21 Behrami and Saramati (2007), 215–16 Belgium, 24–25 federalism and foreign affairs, 58, 71–72, 84 Berne Convention, 5–6, 123 Berne Convention [2002], 123–24, 136 bilateral agreements, mixed, 11–29 categories of, 16–27 association agreements, 17–20 cooperation agreements of general agreement without association, 20–23 mixed sectoral agreements without political dialogue, 24–27 mixed trade agreements with political dialogue, 24 choice of proper legal basis, 15 reasons for, 14–15 techniques to alleviate negative effects of mixity, 13 United States, with, 332 Bilaterals 1, 24–25 Bonn Republic and Constitution, 66–67, 69, 71 Bosnia and Herzegovina, 35, 36–37 Bosphorus (2005), 211–12, 213–14 Bristol, University of, 8 see also Leiden-Bristol conference on mixed agreements Brussels Convention and Regulation, 164–65, 178, 322 Bulgaria, 25, 35 Canada, 58, 60, 65, 84 CARIFORUM, 279, 290 Central America, 277 Central Asia, 21 Centre of Expertise on European Law (ECER), 301 Centro-Com [1997], 108 Charter of Fundamental Rights, 293 Chile, 20, 22 China, 26, 372 citizens’ rights, 41

Civil Global Navigation Satellite System (GNSS) see Galileo system and agreement classic mixity, 13, 21, 44–45, 250–51, 253, 299, 328 Lisbon Treaty, after, 353, 355, 358–59, 362, 364–65 classified information see security and classified information close cooperation see duty of close cooperation closed federations see under federalism and foreign affairs codes of conduct, 145, 261,311 Codex Alimentarius Commission, 261–62, 311 establishment of positions, and, 311 European Parliament and Commission, 274 FAO, 145, 147–49, 150, 155, 159, 261–62 ICAO, 261 IMO, 261 post-Uruguay negotiations, 145, 261 UNESCO, 145, 147, 148–51, 155, 299, 261 WTO, 147, 155, 261, 282 Codex Alimentarius Commission, 3 Colomer, Advocate-General, 116, 131–35 Commission v Germany [2005], 100 Commission v Ireland see Mox Plant Commission v Italy [1962], 161 Commission v UK [1981], 99–100 Committee of Permanent Representatives of Member States see COREPER common commercial policy, 51, 193, 356–59, 364–65 international agreements, and, 75 joint agreements between Community and Member States, 11–12 common foreign and security policy (CFSP), 7, 21, 143, 250, 302 cross-pillar mixity, and, 33–34, 36–41, 44–46, 48–49, 51–54, 353–54 ECJ, and, 188 ECOWAS, and, 33–34 EFTA countries, and, 323 mixed agreements, European Parliament, and, 281, 286–90, 293–94

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Index mixity in practice, 234, 236–37, 245, 247–48, 254 Lisbon Treaty, after, 352–55, 363–65 Common Security and Defence Policy see under European Security and Defence Policy Community interest, 6, 116, 135–37, 265–67 Community Patent Court, 132 competences, 32 allocation between EU and Member States, 192, 209, 225, 294, 333–34 broad interpretation avoiding mixity, 16 conferred or attributed, 49, 53, 188 cross-pillar agreements, division not spelled out in, 48 declarations of see under declarations development cooperation, and see under development cooperation discussion at EU level, 296–99 duty of cooperation, and, 102–103 Member States and Union competences interlinked, 103–105 Member States and Union exercising competences independently, 106–114 EU exclusive competence, 355–63, 371 a priori exclusivity, 356–59 adoption of positions in mixed agreements, and, 146–49, 159, 310 blurring boundaries, and, 363–65 conclusion of agreements, 315–18 exceeded, in dispute settlement, 201 EU institutions’ duty to cooperate when exercising, 112–14 exclusivity and disconnection clauses, 181–85 external, 181, 296–97 limitations on, 353 potential, 371, 372 signature of agreements and provisional application, 313–14 supervening exclusivity, 356, 360–63 WTO, and, 213–15, 224 external see external competences general legal framework implementing mixed agreements, and, 140–42 internal see internal competences

interpretation of mixed agreements, and see interpretation of mixed agreements Member States: exclusive, 282, 310–314, 316 negotiations, and, 305 preserving, 372 third countries, and, 107, 255, 259–60 suspension of agreements, and, 247 Union, and, competences interlinked and duty of cooperation, 103–105 Union, and, independent competences and duty of cooperation, 106–114 Union laws obligations governing exercise of, 154–58 multilateral conventions, division in, 259–60 non-exclusive see non-exclusive competences shared see shared competences conclusion of mixed agreements, 256–57 declarations of competence, and, 315–18 conditionality clauses, 205, 295 conduct: attribution of, 215–17, 217–18, 226, 342 obligation of, 104–105, 114 Constitution for Europe, 1, 50, 143, 352, 362–63 constitutional and legislative pre-emption, treaty powers scope and, 77–79 consultation: EFTA, and, 321 European Commission, and, 232, 247 European Council, and, 239, 245–46, 258, 273 European Parliament, and, 52, 241, 253, 270–71, 273–75, 277–78, 281, 284–93 Member States, and, 98–101, 105, 114, 155–59, 179, 206 Convention for the Protection of the Mediterranean Sea against Pollution, 6, 124, 264 Convention on Action against Trafficking in Human Beings, 170 Convention on Choice of Court Agreements, 178

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Index Convention on Cybercrime, 165, 168 Convention on Information and Legal Cooperation, 165 Convention on Insider trading, 168 Convention on International Trade in Endangered Species (CITES), 221–22 Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime, 169 Convention on Long Range Transboundary Air Pollution, 297 Convention on Mutual Administrative Assistance in Tax Matters, 168 Convention on the Custody of Children, 164 Convention on the Physical Protection of Nuclear Material and Facilities (CPPNM), 241 Convention on the Prevention of Terrorism, 170 cooperation agreements, 241 general nature without association, of, 20–23 India, 15 Mexico, with, 22–23 partnership and cooperation agreements, 21 San Marino, with, 22, 23 South Africa, with, 22 cooperation, duty of see duty of cooperation cooperative federalism, 371 Copenhagen European Council, 18 copyrights, 5, 123 COREPER, 148, 311 Cote d’Ivoire, 279–80 Cotonou [1994], 209–10 Cotonou Agreement, 45, 144, 236, 245, 277–79, 290 Council Working Group on External Relations (RELEX), 298 counter-terrorism, 26, 45, 169–70, 201, 251 negotiating directives, and, 234–37, 251 Court of First Instance, 132 Croatia, 35, 44, 251 cross-pillar mixity, 13, 30–54 EU mixity after Lisbon Treaty, 49–53, 353–54, 365 forms of mixity in EU, 32–46

cross-pillar second/third pillar combinations, 34–37, 48–49, 53 EU/EC combinations, 37–40, 48–49, 53 EU/EC/Member State combinations, 44–46 EU/Member State combinations, 40–44 non-Community parts, whether need for mixity in, 32–34 Member States, and, 7, 8, 40–46, 48, 51–53 restraints on external competences, 46–47 whether need for in non-Community parts of EU, 32–34 Cuyler v Adams (1981), 64 Cyprus, 19, 28, 280 Czech and Slovak Federal Republic, 18 cultural diversity, 145, 147, 150, 155, 167, 261–62, 299 property, 164, 166 services, 358 customs, 35, 117, 226, 235, 240, 300, 321, 356 mixed bilateral agreements, and, 19, 23, 26, 28 union and WTO Panels, 214–15 cybercrime, 165, 168 declarations: 35, 49 competence, of, 343, 373 adoption of positions under mixed agreements, and, 150, 153 ambiguity of EU declarations, 335–37, 339, 347 conclusion of mixed agreements, and, 315–18 deposit of, 259, 316, 335 dispute settlement, and, 193–94, 204, 207 duty of cooperation, and, 108–110 ECJ having regard to, 260 EU, ambiguity of, 335–37 incomplete mixity, and, 373 international responsibility for mixed agreements, and, 209–11, 224, 226 interpretation of mixed agreements, and, 127–29

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Index conclusions of agreements, and, 315–18 mixity from outside EU, 337, 339 343, 347 multilateral situation, liability, and, 263 practice of EU and Member States, mixed agreements in, 259–60, 263 structure, 336 UNCLOS, EC competences for, 3, 127–29, 173–74, 317, 337, 373 WTO, 211 disconnection clauses, and, 161–62, 166–68, 171–75, 186 Member States required to make, 165–68 political dialogue, on, 20, 23 unilateral, 28 Demirel [1987], 117–118, 123–24, 264 Denmark, 322 development cooperation, 15, 23, 28, 364–65 Community competences, and, 33–34 cooperation on counter-terrorism, as, 235 Dior [2000], 5, 47, 151, 200, 265–66 duty of cooperation, 94–98, 105, 107 interpretation of mixed agreements, 120–23, 130, 135–37, 189 disconnection clauses, 160–86, 337 exclusivity, and, 181–85 ‘judicial’, 204–205 legal effect of, autonomy of union legal order, 171–78 mixed agreements, and, 179–81 nature of and when used, 162–70 EU and Member States Declaration, 161, 162–63 standard clause, 162, 163, 168–70 primacy of Union law, 160–61 purpose, 160 ‘without prejudice’ and non-effect clauses, 164–68 dispute settlement in mixed agreements, 186–207 duty of close cooperation, Member States and third countries, and, 205–206

foundations of autonomy of EU legal order, 187–89 international dispute settlement mechanisms, third countries, and, 192–99 binding interpretation of Union law referred to in agreements, 196–99 EU and Member States, allocation of powers between, 193–94 EU institutions, character of powers of, 194–96 Member States and/or EU between, 199–205 agreements solely concluded by Member States, 202–203 public international law, coincidence with, 203–205 mixed agreements concluded by EU, 200–202 potential importance of mixity for Member States, 199–200 public international law, interconnecting with, 190–92 Doha Development Agenda, 309 domestic enforcement of mixed agreements, 264–67 Draft Articles on State Responsibility, 217 Draft Articles on the Responsibility of International Organisations, 209, 227 EU, and, 217–24 rules on attribution, 215–17, 217–18 dualism, 33–34, 57, 198 duty of close cooperation, 141, 156–57 dispute settlement, Member States and third countries, and, 205–206, 207 duty of cooperation, and, 89, 91, 95–96, 103, 107, 98, 100, 111 treaty-making process, in, 233–34, 241–42 duty of cooperation, 4, 46–47, 87–115, 261, 282, 358, 360 as application of general principle of loyal cooperation, 91–92 constitutional foundation of, 88–92 constraining effects of, 92–102 duty involving legal obligations, 93–94, 95 duty involving specific procedural obligations, 97–102

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Index unconditional effects, 94–97 differentiated application, 102–114 disconnection clauses, and, 179 dispute settlement, Member States and third countries, and, 205–206, 207 duty of close cooperation, and, 89, 91, 95–96, 103, 107, 98, 100, 111 EU: institutions’ duty when exercising EU exclusive competence, 112–14 interest, and, 135–36 Member States, and, competences interlinked, 103–105 Member States, and, exercising competences independently, 106–114 solidarity, duty of cooperation as expression of, 93 Member States: duty when exercising retained powers, 106–111 obligation of result, 97, 103–105, 114 Union, and, competences interlinked, 103–105 Union, and, exercising competences independently, 106–114 mixed agreements, 88, 91–93, 95–97, 102, 114–15 adoption of positions in, 141–42, 145, 148, 155–58, 311–12 implementation, and, 103–114 operational, making more, 372, 374 principle of loyal cooperation, 34, 47, 89, 93, 108 as foundation of duty of cooperation, 91–2, 111 treaty-making process, in, 233–34, 241–42 unity, requirement of, and, 90–91, 92, 242, 282, 369 duty to provide information, 98, 100–101, 105, 114, 158, 206 Economic Community of West African States (ECOWAS), 33–34 Economic Partnership Agreements (EPAs), 277–80, 290, 293 ECOWAS [2008], 33–34, 39–40, 47, 52, 237, 302–303, 364–65

EC-Protection of Trademarks and Geographical Indications, (2005), 214 EC-Selected Customs Matters (2006), 215 EDF [1994], 263 energy, 3, 22, 98, 258 EAEC, 88–89, 91, 98, 157–58, 242 Energy Charter Conference, 3 Energy Charter Treaty, 258 enforcement of mixed agreements, 262–67 domestic enforcement, 264–67, 298 ECJ interpreting mixed agreements, and, 123–29 international enforcement, 263 enlargement of EU, 372 difficulties of, 7, 12, 27–28 enlargement protocols, 238–41, 257 EU Eastward Enlargement Process, 239 see also accession entry into force of mixed agreements, 345–46 environment, 3, 209, 364 air transport, and, 219–20 freedom of information, and, 127 pollution, 124–27, 153, 173, 220–21, 264–66, 297 whaling, 297 ERTA doctrine, 77–78, 259, 265, 300, 370 establishment of agreed positions see under adoption of positions under mixed agreements Etang de Berre [2004], 124–25, 126, 136–37, 210, 264, 342–43 EURATOM, 87, 91, 242, 281, 353 Eurojus, 323 Euro-Med Agreements, 19–20, 27, 44, 251, 280 Europe: Agreements, 18 Central, 18, 27 Constitution for, 1, 50, 143, 352, 362–63 Eastern, 18, 27 European Agency, The, 323 European arrest warrant, 323, 327–28 European Atomic Energy Community (EAEC), 88–89, 91, 98, 157–58, 242 European Coal and Steel Community (ECSC), 281 European Commission:

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Index adoption of positions in mixed agreements, 142–45 common commercial policy, 51 consultation, and, 232, 247 duty of cooperation, and, 99–100 ‘best endeavour’ duty, 113 Member States, with, 113 duty to avoid conflicts with treaty provisions, 49 exclusivity, and, 2, 113 executive federalism, and, 213–14 infringement procedures see under European Court of Justice (ECJ) Legal Service, 1, 220, 249, 367–68, 374 multilateral agreements, 99–100 negotiating directives see negotiating mandates and directives negotiating role, 232–33, 238, 240, 247, 249, 252–55, 282–83 Member State, and, 305, 308, 338–39 Netherlands favouring strong role, 296 third countries, and, 328 mixed agreements, and, 11 mixed-mixed agreements, 44–45 WTO, and, 4, 211, 213–15, 224–25 European Commission of Human Rights, 211 European Common Aviation Area (ECAA): disconnection clauses, and, 169 ECJ, and, 192, 194, 196–98 ratification, and, 242–43 European Community (EC): autonomy of legal order see autonomy of EU legal order competences see competences cross-pillar mixity, 48, 53 EU/EC combinations, 37–40, 48–49, 53 EU/EC/Member State combinations, 44–46 implied powers see implied powers international organisations, and see under international organisations institutions see institutions, EU persons with disabilities, UN convention on rights of, 243 see also European Union (EU) European Community Treaty (EC Treaty), 90, 143, 232, 238, 352–53

Art 5, 14, 188, 236, 353 Art 7, 188–89 Art 10, 4, 47, 88–89, 91–92, 98–99, 102, 111–13, 125, 133, 155–58, 172–73, 181, 199, 205–206, 207, 220, 242, 261–62, 267, 311–12, 358, 360 Art 28, 137 Art 39, 117 Art 60, 237 Art 62, 38 Art 63, 29, 38 Art 66, 38 Art 71, 112 Art 80, 26, 112 Art 95, 38 Art 96, 40 Art 100, 357 Art 113, 19, 24, 356 Art 133, 3, 11–12, 19, 24, 25, 272, 281, 356–59, 364 Art 136, 281 Art 170, 25 Art 174, 297 Art 175, 126, 364 Art 176, 364 Art 200, 38 Art 220, 188, 199 Art 226, 123, 244, 313 Art 230, 316 Art 232, 113 Art 234, 119, 121, 130, 161, 265 Art 235, 15, 24, 357 Art 238, 19 Art 244, 211 Art 251, 239 Art 256, 211 Art 281, 191 Art 292, 98–99, 125, 172–74, 185, 188, 199–201, 203, 205 Art 300, 14, 46, 49, 130, 139, 180, 206, 223, 232–33, 239, 241, 253, 255, 258, 266, 272–73, 275, 284, 292, 304, 308–309, 312–13, 315–16, 373 Art 301, 237 Art 307, 161, 172, 177 Art 308, 3, 15, 24 Art 310, 22, 117, 239, 368 see also Treaty on the Functioning of the European Union (TFEU)

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Index European Convention on Human Rights (ECHR), 196, 211–13, 217 European Convention on Mutual Assistance in Criminal Matters, 170 European Convention on the Legal Status of Migrant Workers, 164 European Convention on the Suppression of Terrorism, 170 European Convention on Transfrontier Television, 169, 176 European Council, 216, 232 adoption of positions in mixed agreements, 142–45, 150 common commercial policy, 51 concluding agreements, 237–38, 240, 250, 256–57, 315–18 conclusion decisions, 222, 253, 309 decisions on signature, and, 313–15 consultation, and, 239, 245–46, 258, 273 conventions, 161–65, 168–70 declarations, Member States required to make, 165–68 discretion to authorise negotiations, 32, 51, 156–57, 232, 272, 282, 312, 338, 354 exclusive competence, and, 6 immigration, and, 29 mixed agreements, and, 11, 32 cross-pillar EC/EU agreements, 37–40, 52 decision numbers in cross-pillar agreements, 34–37 mixed-mixed agreements, 44–45 provisional application, and, 13, 257 suspension of agreements, 245–47, 289–90 third state agreements, 30 voting, and see under voting WTO, and, 4 European Court of Human Rights (ECtHR), 196, 210–13, 217, 226 UN peace-keeping, and, 215–17 European Court of Justice (ECJ): allocation of competences, 335, 337, 356 as EU institution, 188–89 autonomy of EU legal order, and, see under autonomy of EU legal order binding nature of rulings, 194–95 CFSP, and, 188

choice of proper legal basis for mixed agreements, 15–16, 38–39 common commercial policy, 356 ECAA, and see under European Common Aviation Area (ECAA) ECOWAS, 33–34, 39–40, 47, 52, 237, 302–303, 364–65 dispute settlements, and see dispute settlement in mixed agreements domestic enforcement, and, 264–67 duty of loyal cooperation, 4, 114–15 cooperation jurisprudence see duty of cooperation EEEA, and see under European Economic Area Agreement (EEA Agreement) ERTA principle, 77–78 exclusive jurisdiction, 4, 189, 191, 194–96, 199–202, 204 cross-pillar cases, 201 ECtHR, and, 212 infringement procedures, 4, 262, 264–65, 300 international court, as, 209 judgments, enforcing, 211, 213 judicial Kompetenz-Kompetenz, 188–89 legal personality of EU, consequences of, 191 Lugano Opinion, 2, 165, 176–77, 182–83, 297, 362 Marpol Convention, 221 mixed agreements, 232 case law on, 2, 5, 33–34, 87 cross-pillar mixity and jurisdiction, 47–49 EU, and see under international responsibility for EU mixed agreements in areas of shared competence, 81 interpretation see interpretation of mixed agreements jurisdiction to interpret see under interpretation of mixed agreements mixed multilateral agreements, 14, 254–55 procedural obligations on Members States and institutions, 93, 97–102, 114

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Index Television Without Frontiers Directive, and, 176 treaty-making process, close cooperation and, 233 Opinion 1/76 Principle, 77, 78–79, 190, 356, 360–63, 365 treaties, and, 334, 344 Union: as new legal order of international law, 58 interest, 6, 116, 135–37, 265–67 treaty-making powers expanded, 75 unity of representation, requirement of, 4 WTO principle, 79 European Development Fund (EDF), 209–10 European Economic Area (EEA Agreement), 123–24, 166, 197–98, 320–30, 331 ECJ, and, 5, 192, 195 enlargement, 326 joining EFTA to EU, 320–21, 324–26 mixity, and, 328–30 mixity, and, 324–28 European Economic Community Treaty (EEC Treaty), 11, 58 Art 113, 257 Art 116, 4, 143 Art 228, 257 Art 238, 17, 257 duty of loyal cooperation, 88–89, 91 mixed agreements explicitly foreseen, 17 treaty-making powers, 74–75 European Free Trade Association (EFTA), 165, 198, 320–30 EEA Agreement, and see European Economic Area Agreement (EEA Agreement) mixity, and, 328–30 European Monitoring Centre for Drugs and Drug Addiction, 323 European Parliament: consultation, and, 52, 270–71, 273–74, 275, 277–78, 281, 284–93 democratic control, 270 direct elections to, 212 enlargement protocols, 239–41 increase in power of, 7

mixed agreements see European Parliament and mixed agreements scrutiny by, 270 European Parliament and mixed agreements, 11, 269–94 adoption of positions in mixed agreements, 142 adoption of resolutions, 270 assent procedure, 270–71, 284–86, 292–93, 315–16, 355 setting preconditions when required, 277–80 showing concern at, 280–81 conclusion decisions, and, 222, 253, 257–58, 355 consultation, 52, 270–71, 273–74, 275, 277–78, 281, 284–93, 355 cooperating with national parliaments, 290–91, 293 cross-pillar mixity, and, 45, 52 provisional application, 257–58 suspension of agreements, 246, 289–90 Treaty of Lisbon changes, 281–91 Commission negotiator of mixed agreements, 282–83 enhanced role, 284–90 inter-parliamentary cooperation with national parliaments, 290–91, 293 Treaty of Nice and negotiations, 272–81 framework agreement with Commission, 273–77 no specific provisions, 272–73 European Police Unit (Europol), 323 European Satellite Centre, 324 European Security and Defence Policy (ESDP), 36, 41, 45, 50–52 renamed Common Security and Defence Policy (CSDP), 50 European Social Charter, 164 European Space Agency, 37 European Union (EU): adoption of positions, and, see adoption of positions in mixed agreements air transport agreement with US, 332 autonomy of legal order see autonomy of EU legal order competences see competences coordination in situations of mixed membership, 260–62

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Index cross-pillar agreements: EU/EC combinations, 37–40, 48–49, 53 EU/EC/Member State combinations, 44–46 EU/Member State combinations, 40–44 Draft Articles on the Responsibility of International Organisations, and, 209, 217–24 ECHR, and, 196, 211–13 enlargement see enlargement of EU federation of States, as, 72–74 foreign affairs see under foreign affairs forms of mixity, and see under cross-pillar mixity Lisbon Treaty, after, 49–53 global player, as, 3 implied powers see implied powers institutions see institutions, EU international agreements see under international agreements international organisations, and see under international organisations languages, authentic, 340–41, 345 legal personality, 49–50, 52, 74, 191 non-Community parts, whether need for mixity in, 32–34 mixed agreements: concluded by, 200–202 responsibility for, see international responsibility for EU mixed agreements Monitoring Mission (EUMM), 30 negotiating with, 338–39 open federation, as, and see under federalism and foreign affairs Opinion 1/76 Principle, 77, 78–79 treaty see EU Treaty; Treaty on European Union (TEU) treaty on functioning see Treaty on the Functioning of the European Union (TFEU) treaty powers, scope of, 74–77 see also European Community (EC) European Union Treaty (EU Treaty), 58, 173, 352 Art 6, 213 Art 24, 38, 267 Art 38, 38

Art 47, 34, 237 cross-pillar mixity, 33–34, 49 dispute settlement, 188–89, 191–192, 195, 199–205 mixity in practice, 237–38 exclusivity, disconnection clauses, and, 181–85 executive federalism, 213–14, 226, 342 cooperative federalism, 371 explicit external competences, 3 extension protocols, 25 external competences: CFSP, for, 8 division between EC and Member States, 34 EU, 189, 193, 259, 283 explicit, 3 foundation of, 14 implicit, 3 non-exclusive nature, 44 united external representation, and, 112 external policy, 38, 270, 285, 292–94, 363, 364–66 external relations, 28–29 ‘Community way’, 296 consistency of, 51, 53 Council Working Group on, 298 dispute settlement, and, 189–90, 197–98 duty of cooperation, and see duty of cooperation EC/EU evolution, and, 3 European Parliament, and, 294 federal States, and see federalism and foreign affairs international responsibility for EU mixed agreements, 216, 227 interpretation of mixed agreements see interpretation of mixed agreements Member States, 48, 188–89 legal personality and cross-pillar mixed agreement, and, 50 mixity in practice, and, 237, 244, 315 Netherlands, and, 295 non-exclusive nature, 44, 114–15 restraints on Member States, 46–47 third countries, and see under third countries extradition agreements, 36, 41–43, 332 false mixed agreements, 223

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Index FAO [1996], 4, 93–94, 206 federalism and foreign affairs: Belgium, 58, 71–72, 84 Canada, 58, 60, 65, 84 closed, 58, 59–65, 70, 84 EU: constitutional principles structuring, 77–79 executive federalism, 213–14 federal constitutional convention, 79–84 international law when founded, 72–74 mixed agreements and foreign affairs, 79–83 open federation of States, as, 58, 72, 85 scope of Member States treaty powers, 77–79, 84–85 scope of treaty powers, 74–77 federal principle, 57–58 federal States, foreign affairs, and, 58–72 absence of mixed agreements, and, 70–72 Germany, 65–71, 84 mixed agreements, and, 79–83 open, 65–70, 84–85 sovereignty, and, 57–59, 61, 67–68, 70–71, 73–74, 77, 81, 84 United States, 59–65 Ferrero-Waldner, Commissioner, 276 FIAMM [2008], 135 Financial Action Task Force (FATF), 170 Finland, 240, 322 fisheries agreements and policy, 3, 148, 277–78, 297–98, 356 provisional application in bilateral agreements, 13 Food and Agriculture Organisation (FAO), 3, 139, 141, 260–61 Arrangement, 145, 147–49, 150, 155, 159 code of conduct, 145, 147–49, 150, 155, 159, 261–62 constitution, 153 duty of cooperation, and, 93–94, 96 foreign affairs: EU, pure and mixed agreements, and, 72–83 federal States, and, 58–72

Fouchet Plan, 8 framework agreement, European Parliament and Commission, 273–77, 283, 292 incomplete application of, 275–77 nature and contents, 274–75 France, 5, 124–26, 210, 216, 240, 264–65, 345 freedom, security and justice, 7, 8, 234, 353 fundamental rights, 44, 45, 245, 278, 281, 286, 290, 293 future of mixity, 367–74 Galileo system and agreement, 25, 26, 27, 225, 332, 341, 343–45 Gaulle, President Charles de, 7–8 Gaza, 281 General Agreement on Tariffs and Trade (GATT), 161 Germany, 99–100, 117–118, 155, 182, 211 federalism and foreign affairs, 58, 65–71, 84 autonomous treaty-making powers of Member States, 68–71 scope of federal treaty power, 67–68 Kosovo, in, 216 Gibralter, 212 GNSS see Galileo system and agreement Great Britain see United Kingdom Greece, 11, 17, 112, 117, 250, 262 Greece v Commission [1989], 139 Haegeman [1974], 46–47, 117, 198, 200–203, 207 Hague Conference on Private International Law, 3, 166–67, 178 Hague Convention on Parental Responsibility, 166–67 Hedley Lomas [1996], 113 Hermes [1998], 47, 96, 118–23, 136–37, 152, 189, 265 Holmes, Justice, 60–61 Holmes v Jennison (1840), 63 horizontal mixity, 31, 34, 51, 53 human rights see fundamental rights Hungary, 18

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Index Iceland, 30, 35–37, 41, 43, 165, 169, 320, 322–33, 325, 329 IMO [2009], 112–13 implicit external competences, 3 implied mixity, 31, 40–41, 43–44 implied powers: external powers, 75 mixed agreements, and, 16, 28–29, 193, 259 incomplete mixity and ratification of agreements, 233, 373 India, 15, 23, 278 Indonesia, 44 information, duty to provide, 98, 100–101, 105, 114, 158, 206 infringement procedures, 4, 262, 264–65, 300 institutions, EU: codes of conduct, 145 duty to cooperate when exercising EU exclusive competence, 112–14 ECJ, as, 188–89 international law, dispute settlement, and, 203–205 mixed agreements with Member States, dispute settlement, and, 199–205 powers, character of, 194–96 interim trade agreements see under trade policy and agreements internal competences, 12–13 international agreements: disconnection clauses in see disconnection clauses EU, and, 30–31, 80–83, 138 unable to accede to, 266–67 International Atomic Energy Authority (IAEA), 242, 246 International Civil Aviation Organisation (ICAO), 219–20, 261, 312 International Convention for the Prevention of Pollution from Ships, 221, 266–67 International Convention for the Safety of Life at Sea (SOLAS Convention), 112 International Convention for the Suppression of the Financing of Terrorism, 169 International Court of Justice, 188, 204 International Criminal Court (ICC), 36, 45, 234, 236, 238, 254

International Criminal Tribunal for the former Yugoslavia (ICTY), 295 international dispute settlement see under dispute settlement in mixed agreements International Labour Organisation (ILO), 75, 106, 184, 193, 202, 296–97, 300 international law: binding EU dealing with third countries, 198–99 binding Member States to Union international agreements, 75–76 dispute settlement, and see under dispute settlement in mixed agreements increasing role for EC/EU, 4 international organisations, and, 72–74 when EU founded, 72–74 International Law Commission (ILC), 209, 215 draft articles on responsibility of international organisations, 209 attribution of conduct, 215–16 EU, and, 217–24 International Maritime Organisation (IMO), 262, 312 code of conduct, 261 duty of cooperation, and, 112 international responsibility for EU mixed agreements, and, 220–21 international organisations: EC/EU member of, 3, 312, 315, 340–41 EU agreements with, 30, 32, 50, 75 establishment of positions in negotiations, 311 ILC draft articles, and see under International Law Commission (ILC) international law, and, 72–74 Member States, and, 75–76, 340–41 treaty powers, 73–74, 81 tripartite agreements with, 298–99 voting, 340–41 international responsibility for EU mixed agreements, 208–27, 263, 342–43 case law: ECJ, 209–10 ECtHR case law, 210–13

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Index WTO Dispute Panels and Appellate Body, 210–11, 213–15, 224, 227–25 UN peace-keeping and ECtHR, 215–17 incomplete mixity, and, 233, 373 rules of responsibility and treaty law, 217–27 ILC draft articles and EU, 217–24 practice with respect to responsibility, 224–26 International Seabed Authority, 261 International Ship and Port Facility Security Code (ISPS Code), 112 International Tropical Timber Agreement, 332 International Whaling Commission, 297 inter-parliamentary cooperation between European and national parliaments, 290–91 interpretation of mixed agreements, 116–37, 189, 209, 265 auto-interpretation, 189, 190 criticised, 136–37 developments since Merck judgement, 129–35 ECJ jurisdiction to interpret mixed agreements, 5 challenge to, 117–118 enforcement proceedings, in context of, 123–29 origins, 117–18 wide construction, preliminary reference procedure, and, 118–23, 136–37 Union interest, and, 135–37 inter-pillar practice since 2000, 251–53 inter-sector mixity, 247 Intertanko [2008], 266–67 Iran, 45, 251–52 Ireland, 5, 98, 102, 211–14 Mox Plant, and, 123–28, 153, 157–58, 173, 179, 199, 201 Israel, 20, 25, 280–81 Italy, 368–70 joint deposition of ratification instruments, 241–45 ‘judicial’ disconnection clauses, 204–205

jurisdiction of ECJ and mixed agreements see interpretation of mixed agreements Justice and Home Affairs (JHA), 21, 37, 234–35, 250, 281, 287–88 Kadi [2008] 90 Karadzic, Radovan, 295 Keck [1993], 137 Kehler Hafen, 69 Kompetenz-Kompetenz, 188–89, 200 Korea, 24–26, 278 Kosovo, 216 Kramer [1976], 312 Kupferberg [1982], 110, 118, 206 Kyoto Protocol, 3 Kus [1992], 117 languages, authentic, of mixed agreements, 341–42, 345 Latin-America, 20 Law of Nations (de Vattel), 63 Lebanon, 251 legal base issues, 2, 5 legal framework for managing mixity, general, 231–34 Leiden-Bristol conference on mixed agreements, 371 evolution of mixity since, 1–8 issues in, 2, 4, 331 Leiden Colloquium, 139, 263 Leiden Europa Instituut, 1, 8 Leifer [1995], 201 Leinen, Rapporteur, 285 Liechenstein, 25, 39, 320, 322, 325 Lindau Accord, 67–68, 70–71 Lisbon, Treaty of, 3, 7, 8, 12, 31–33, 302–303 EU/EC/Member States relationship before, 33–34, 40, 48 European Parliament, and, 270, 281–91 mixity after, 49–53, 138–39, 351–366 a prioi competence, 356–59 blurring boundaries between union competences, 363–65 exclusive union competence, 355–63 in practice, 237, 247–48, 326–28 supervening exclusivity, 360–63 union structure, and, 352–55 Lome Convention, First, 117

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Index loyalty, principle of see under duty of cooperation Lugano Convention, 164, 296, 322 Lugano II, 165, 177, 322 Lugano Convention [2006], 181–82 Opinion, 2, 176–77, 182–83, 297, 362 Luns, President, 273 Luns-Westerterp procedure, 273–74, 292 Luxembourg, 25, 99–100, 155–56, 265 Luxembourg Accord, 82

EU, and, 32–33, 49, 189 allocation of powers between, 193–94 enforcement, and see enforcement of mixed agreements information, duty to provide, 98, 100–101, 105, 114, 158, 206 international agreements binding on, 80 international law, dispute settlement, and, 203–205 international organisations, and see under international organisations international rights of, 75–76 mixed agreements: between, and/or EU institutions, dispute settlement and, 199–205 enforcement see enforcement of mixed agreements languages of, 341–42, 345 negotiating multilateral agreements, 254–55 non-exclusive external competences, and, 5, 6 obligations of conduct, 104–105, 114, 140–41, 165–68, 179–80 obligation of result, 97, 103–105, 114 practice, in, see mixed agreements in recent practice provisional application, 258–59 requiring political dialogue to ensure mixity, 16 responsibility for, see international responsibility for EU mixed agreements retained powers, exercising, duty of cooperation and, 106–111 mixity, potential importance for, 199–200 national approval of agreements in Netherlands, 301–302 national courts see national courts national parliaments cooperating with European Parliament, 290–91, 293 negotiating mandates, 305–308 negotiating with, 338–39 Overseas Countries and Territories, 308 prior information, duty to provide, 98, 100–101, 105, 114, 158, 206 ratification, and see under ratification relationship with EC/EU before Lisbon Treaty, 33–34

Maastricht, Treaty of, 3, 4, 143, 237, 250, 257, 270 bilateral agreements, and, 21, 24, 28 EEA Agreement, and, 328 M and Co v Germany (1990), 211 Macedonia, Yugoslav Republic of, 35, 37, 44, 251 Maduro, Advocate-General, 128–29 Malaysia, 44 Malta, 19 Maritime law, 3 Maritime Labour Convention, 300 Maritime Safety Committee (Marsec Committee), 112–13 Marpol Convention, 221, 266–67 Matthews (1999), 212 Mediterranean see Euro-Med Agreements Member States: abstention, duty of, 47, 91, 93, 99–102, 108, 111, 156–57, 262 action, duty of, 99–101, 156 agreements solely concluded by, 202–203 association agreements, and see under association agreements codes of conduct, 145 commercial policy see common commercial policy competences see competences constitutional legal orders, 188–89 consult, duty to, 98–101, 105, 114, 155–59, 179, 206 cross-pillar mixity see under cross-pillar mixity declarations, requirement to make, 165–68 duty of cooperation see duty of cooperation EC, and, 33–34

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Index sovereignty see under sovereignty treaty powers, scope of see under treaty powers trustees, as, 255 WTO, and, 4 Mengozzi, Advocate-General, 33–34, 47, 237 Merck [2007], 6, 151, 200, 265–66 interpretation of mixed agreements, 116, 122, 129–37, 189 Mercosur, 20 Mexico, 16, 22–23, 241 Middle East, 19–20 Mischo, Advocate-General, 124, 290 Missouri v Holland (1920), 60–61 mixed agreements: adoption of positions under see adoption of position under mixed agreements authentic languages of, 341–42, 345 bilateral see bilateral agreements, mixed binding interpretation of Union law referred to in, 196–99 classic see classic mixity commercial policy see commercial policy agreements Conference on see Conference on Mixed Agreements conclusion of, 256–57 declarations of competence, and, 315–18 disconnection clauses, and, 179–81 dispute settlement see dispute settlement in mixed agreements ECJ, and see under European Court of Justice (ECJ) enforcement, 262–67 enlargement of EU and see enlargement of EU entry into force, 345–46 EU concluded by, 200–202 responsibility for see international responsibility for EU mixed agreements EU institutions and Member States: between, 199–205 practice, in, see mixed agreements in recent practice

European Parliament see under European Parliament and mixed agreements expression absent from EEC Treaty, 11 false, 223 federal States, foreign affairs, and, 70–72 foreign affairs, and, 79–83 implementation see adoption of positions in mixed agreements interpretation of see interpretation of mixed agreements issues in, summary of, 2 legal explanations for, 140–42 legal framework for managing, general, 231–34 Member States, and see under Member States mixed-mixed agreements, 44–45 multilateral agreements see multilateral mixed agreements negotiating, 234–38, 309–13 provisional application see provisional application pure agreements, EU and, 72–83 ratification see ratification responsibility for, see international responsibility for EU mixed agreements signature, 313–15 suspension of application and implementation, 245–47, 289–90 unanimity see under voting mixed agreements in recent practice, 249–68 evolution of mixity, 250–53 inter-pillar practice since 2000, 251–53 legal basis for ‘new mixity’, 250–51 recent practice on EU and Member States agreements, 253–67 division of competences in multilateral conventions, 259–60 enforcement, 262–67 provisional application, 257–59 treaty-making see treaty-making process Union coordination in situations of mixed membership, 260–62 see also mixity in practice mixed membership, 260–62

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Index mixed sectoral agreements without political dialogue, 24–27 Bilaterals 1, 24–25 Galileo, 25–26 Open Skies, 26–27 mixed trade and cooperation agreements with political dialogue, 24 mixity: avoiding with implied powers, 16, 28–29 classic see classic mixity concept of shared competences, 2 conceptual and legal challenges associated with, 333–36 conclusion phase of making, 238–45 cross-pillar see cross-pillar mixity disadvantages, 271–72 EEA Agreement, and, 324–26 evolution of, 1–8, 250–53 forms of, EU in, see under cross-pillar mixity future of, 367–74 general legal framework for managing, 231–34 horizontal see horizontal mixity implied see implied mixity incomplete, 233, 373 international phenomenon, as, 57–86 management of, 4 living with, 371–74 ‘necessary’, 282 negative effect of, 12–13 new, 21, 250–51, 254 orienting negotiations away from, 16–17 outside the EU see treaty partners and mixity outside the EU in the internal market, 320–30 Art 24 TEU, mixity, and, 326–28 EEA Agreement, and, 324–26 EFTA states, and, 328–30 overview, 322–24 potential importance for Member States, 199–200 practical problems with, 338–46 practice, in see mixity in practice pre-Lisbon, EFTA countries, and, 326–28 ratification see ratification reverse, 266–67

standard treaty practice and mixity, tension between, 333–34 substantive, 328–30 Treaty of Lisbon era, in see under Lisbon, Treaty of unanimity see under voting vertical, 31, 33, 34, 40–44, 51, 52–53 ‘voluntary’, 282 mixity in practice, 231–48, 304–19 conclusion of agreements and declarations of competence, 315–18 general legal framework for managing mixity, 231–34 negotiating agreements see negotiating agreements negotiating mandates see negotiating mandates and directives Netherlands, and, see under Netherlands, The outside the EU see treaty partners and mixity outside the EU inside the internal market see under mixity signature and provisional application see provisional application suspension of application and implementation of agreements, 245–47, 289–90 treaty-making process see treaty-making process see also mixed agreements in recent practice Mladic, Ratko, 295 Moldova, 21 Montreal Convention, EC contracting party to, 3 Morocco, 25, 26 Mox Plant [2006], 4, 361 disconnection clauses, 173 dispute settlement, 192, 199, 201–202, 204–207 duty of cooperation, 91, 98, 102, 105, 107, 111, 157–58 interpretation of mixed agreements, 125–28, 136, 189 multilateral mixed agreements, 242–43, 331 Community position and, 14

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JOBNAME: Hillion PAGE: 17 SESS: 2 OUTPUT: Fri Apr 23 09:28:50 2010

Index declarations of competence, and, 263, 335 disconnection clauses, and, 179 division of competences in, 259–60 incomplete mixity, and, 373 languages of, 341 negotiating, 254–55, 262 establishment of positions, and, 311 treaty bodies, establishing, 340 voting, and, 340–41 mutual legal assistance agreements, 36, 41–43, 332

Norway, 30, 35–37, 41, 43, 169, 320–30 EFTA, and, 165, 166 Kosovo, in, 216

national constitutional requirements, 42, 44, 46 national courts, 97, 105, 119, 121–23, 130, 135–36 preliminary references from, 47, 95, 264, 265–66 national parliaments cooperating with European Parliament, 290–91, 293 Negara Brunei Darussalam, 44–45 negotiating agreements, 234–38, 309–13 negotiating mandates and directives, 234–37, 272, 292, 304–309, 327, 338 counter-terrorism, and, 234–37, 251 Member States, and, 305–308 Netherlands, The, 118–20 Constitution for Europe, 1 mixity in practice, 295–303 discussion at EU level, 296–99 internal problems, 299–300 national approval of agreements, 301–302 practical solution, 301 Newly Independent States (NIS) agreements, 44 Nice, Treaty of, 3, 11–12, 188, 287, 356–58 European Parliament and negotiations, 272–81 mixed procedure under, 12 non-effect clauses, 164–68 non-exclusive competences, 5–6, 32–33, 126, 128 EU and adoption of positions in mixed agreements, 149–54, 159 mixed procedure, and, 14 North Atlantic Treaty Organisation (NATO), 215–16 NATO Kosovo Force, 216

obligation of conduct, 104–105, 114 obligation of result, 97, 103–105, 114 open federations see under federalism and foreign affairs Open Skies agreements, 2, 26–27, 283, 296 Open Skies [2002], 182, 202–203, 207, 283, 296 Opinion 1/76 Principle, 77, 78–79, 190, 356, 360–63, 365 Overseas Countries and Territories, Member States’, 308 Ozone Treaties, 332 Palermo Convention on Transnational Organised Crime, 170 Palestinian Liberation Organisation (PLO), 19–20 parallel competences see under shared competences parallelism, doctrine of, 74–77, 81 partnership and cooperation agreements (PCAs), 21, 27–28, 263, 276–77, 281 adoption of positions in mixed agreements, and, 144–45, 147, 155 mixed-mixed agreements, and, 44–45 NIS, 44 tripartite agreements, 298–99 passenger names records agreements, 35–44, 284, 302, 332, 337, 341, 345 patents, 6, 129–32, 265–66 Permanent Court of International Justice, 73 PFOS case, 102 Philippines, The, 44 PNR [2006], 40, 284 Poland, 18, 29, 99, 258 police and judicial cooperation (PJCCM), 303, 353 cross-pillar mixity, and, 31, 34, 36, 39, 44–46, 50, 53 ‘political dialogue’, 16 association agreements, and, 18, 19–20 cooperation agreements, and, 22, 23 mixed sectoral agreements without, 24–27

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JOBNAME: Hillion PAGE: 18 SESS: 2 OUTPUT: Fri Apr 23 09:28:50 2010

Index mixed trade and cooperation agreements with, 24 PCAs, and, 21 references leading to mixity, 16, 27 pollution, 124–27, 153, 173, 220–21, 264–66, 297 Portugal, 15, 118, 129–30, 258, 265 Portuguese Textiles [1999], 122, 135 potential external competences, 2–3 pre-accession agreements, 18–19 preliminary references: national courts, from, 47, 95, 264, 265–66 procedure, ECJ interpreting mixed agreements, and, 118–23 primacy of Union law, 160–63, 182–83, 185, 203 principle of loyal cooperation see under duty of cooperation principle of supremacy, 46, 108, 111 prior information, duty to provide, 98, 100–101, 105, 114, 158, 206 Proba 20, 1, 145, 147, 155, 260–61 procedural obligations on Members States and institutions, 93, 97–102, 114, 136–37 Prodi, R, 274 provisional application, 13, 243–44, 257–59 mitigating effect of delays, 373 signature of mixed agreements, and, 313–15 pure and mixed agreements, EU and, 72– 83 Racke [1998], 190 ratification: delays, Member States, and, 243–45, 247, 298, 315–16, 372–74 provisional application mitigating, 373 entry into force of mixed agreements, 345–46, 372–73 EU depositing declaration of competence upon, 259, 316, 335 flexible, 372 incomplete causing uncertainty, 233, 373–74 national, 233, 370–71 Netherlands, in, 301–302

requirement, 12 separate, avoiding need for, 367–70 raw materials agreements, negotiations on, 1 Razanatsimba [1977], 117 Regional Economic Integration Organisations (REIOs), 178, 221–22, 259, 315 requirement of unity see unity of representation, requirement of result, obligation of, 97, 103–105, 114 retained powers, Member States exercising, 106–111 reverse mixity, 266–67 Romania, 25, 35, 99 Rome, Treaty of see European Economic Community Treaty (EEC Treaty) Russia, 27–28, 276, 278, 372 San Marino, 23, 240 sanctions, 148, 188, 211, 213, 237 Santer Commission, 274 Saramati (2007), 215–16 Schengen Agreement and acquis, 29, 30, 38, 41, 248, 252–53, 299 Schengen cooperation, Norway and Iceland, and, 322–23 Schengen-related agreements, 329 Schengen SIS [2006], 201 Schermers, Professor Henry, 1, 2 Schieving-Nijstad [2001], 122, 135–36 security and classified information, 35–37, 39–40, 324 combating terrorism see counter-terrorism, Serbia, 11, 290, 295–96 Sevince [1990], 117, 139 shared competences, 2, 4, 14, 42, 371 adoption of position under mixed agreements, and, 149, 152–54 dispute settlement, and, 189, 203 disconnection clauses, and, 182–83, 185 duty of cooperation, and, 104, 107 establishment of positions, and, 310 federalism, and, 81–82 international responsibility for EU mixed agreements, and, 213–15 interpretation of mixed agreements, and, 126–27, 134

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Index mixed agreements in recent practice of EU and Member States, 255 mixed membership, and, 261–62 mixity in practice, and, 296, 298, 303, 305, 310 mixity post-Lisbon, 353, 358–60, 362, 364 parallel, 42, 66, 71, 78, 297, 371 doctrine of parallelism, 74–77, 81 WTO negotiations, and, 282 signature of mixed agreements, 313–15 Singapore, 44 Single European Act (1986), 3 Slovakia, 99 South Africa, 22, 367–70 Southern Caucasus, 21 sovereignty: international organisations, 73 EU, and, 212 federalism, and, 57–59, 61, 67–68, 70–71, 73–74, 77, 81, 84 Member States, 74, 77, 189, 371 transfer from, 333, 348 mixity, and, 333 third countries, 81, 195, 197 Spaak, Paul Henry, 248 stabilisation and association agreements (SSAs), 11, 234, 251, 295–96, 295–96 mixed agreements, as, 18 mixed-mixed agreements, 44–45 pre-accession agreements, as, 18 Stability Instrument, 235 Stockholm Convention on Persistent Organic Pollutants, 298 substantive mixity, 328–30 supervening exclusivity, 356, 360–63 supremacy, principle of see principle of supremacy suspension of mixed agreements, 245–47, 289–90, 298 Sweden, 102, 240, 298, 322 SWIFT, 271, 293 Swiss Air, 25 Switzerland, 29, 165, 248, 252–53, 299, 320, 322, 325 Bilaterals 1, 24–25, 27 cross-pillar mixity, and, 35, 38–39, 41, 44, 48

Television Without Frontiers Directive, 169, 176 terrorism see counter-terrorism Tesauro, Advocate-General, 96, 152, 189 Thailand, 44, 299 third countries: association agreements with, 74–75 declarations of competence, and, 127–29, 173, 335 disconnection clauses, and, 161, 164, 171, 173–78, 181, 184 dispute settlement, and, 188, 189, 190, 192, 201–202, 204 duty of close cooperation, Member States, and, 205–206 settlement mechanisms for disputes with, 192–99 ERTA principle, and, 77 establishment of positions, and, 311 EU enlargement, and, 27 EU law: extending to, 197 primacy of, and, 160–61 ECJ rulings binding, 195 external relations, with, 198 incomplete ratification of agreements causing uncertainty, 233, 373–74 interim agreements, and, 314 international responsibility for agreements with, 209–10, 222–23, 263, 267, 373–74 Member States: as guarantors of Union obligations, 81 entering into obligations with, 107, 110–11, 259–60 unable to enforce Union obligations against, 76–77 multilateral agreements, and, 255, 259–60, 373–74 negotiating: Commission, with, 328 mandates, and, 327–38 non-compliance, addressing, 109, 111 Open Skies agreements, 2, 26–27, 283, 296 personal data transfer to, 293 preferential treatment and financial aid to, 290

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JOBNAME: Hillion PAGE: 20 SESS: 2 OUTPUT: Fri Apr 23 09:28:50 2010

Index preliminary rulings to ECJ by third country courts, 195 sovereignty see under sovereignty technological development with, 26 treaty partners with EU, mixity and see treaty partners and mixity tripartite agreements with, 298–99 trade marks, 5, 119 trade policy and agreements, 3, 45, 213, 284, 286, 298 interim agreements on trade and trade-related matters, 13, 281, 314 PLO with, 19 Korea, trade agreement with, 24–26 mixed trade and cooperation agreements with political dialogue, 24 South Africa, trade agreement with, 22, 367–70 trade agreements explicitly foreseen in EEC Treaty, 17 Trade Related Aspects of Intellectual Property Rights (TRIPS), 5, 95–97, 357, 368 adoption of positions under mixed agreements, and, 151–52, 154 interpretation of mixed agreements, and, 118–23, 129–36, 265–66 transport, 3, 99–100, 155–56, 209, 300 air transport see air transport treaty law and rules on responsibility, and, 217–27 Treaty on European Union (TEU), 49–50, 143–44, 352–53 Art 1, 352 Art 2, 289 Art 3, 289 Art 4, 88–89, 92, 98, 102, 111–13, 125, 133, 155, 157, 159, 172–73, 181, 199, 205–206, 207, 220, 242, 261–62, 267, 311–12, 358, 360 Art 5, 14, 188, 236 Art 11, 34 Art 13, 188–189 Art 14, 294 Art 17, 51 Art 19, 188, 199 Art 21, 289, 363–64 Art 22, 7

Art 24, 30, 31, 32, 34–37, 41, 46, 237, 250–54, 287, 302, 326–28, 351 Art 31, 355 Art 35, 48 Art 36, 289, 294 Art 37, 50, 237, 250–51, 254, 287, 302 Art 38, 31, 34–37, 53, 237, 250, 253, 287, 302 Art 40, 34, 52, 143, 189, 238, 247, 252, 288–89, 363 Art 46, 188 Art 47, 39, 49, 52, 189, 191, 238, 247, 252, 288–89, 363 Treaty on the Functioning of the European Union (TFEU), 50, 138, 143, 216, 352–55 Art 1, 352 Art 2, 353, 362, 365 Art 3, 356, 359–63, 365, 371 Art 3–6, 143, 363 Art 4, 4, 353, 361, 365 Art 34, 137 Art 45, 117 Art 79, 29 Art 91, 112 Art 100, 26, 112 Art 168, 359 Art 186, 25, 126 Art 191, 297 Art 192, 364 Art 193, 364 Art 207, 3, 12, 19, 24, 25, 51, 281, 359, 364 Art 215, 237 Art 216, 50, 76, 130, 172, 177, 180, 206, 223, 304–305, 373 Art 217, 17, 22, 117, 239, 368 Art 218, 14, 51–52, 139, 142–44, 232–33, 239, 248, 253, 255, 266, 281, 284, 285–88, 290, 293, 302, 308–309, 312–13, 315–16, 354–55, 365 Art 258, 123, 244, 313 Art 259, 200 Art 263, 316 Art 265, 113 Art 267, 119–21, 130 Art 280, 211 Art 294, 239 Art 295, 294

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Index Art 299, 211 Art 307, 161 Art 344, 98–99, 125, 172–74, 185, 188, 199–201, 203, 205 Art 351, 160–61 Art 352, 15, 24 Art 353, 3 treaty-making process, 231–45, 253–57 conclusion of mixed agreements, 238–45, 256–57 European Parliament, and see European Parliament and mixed agreements general legal framework for managing mixity, 231–34 negotiation phase, 234–38 choice of negotiator, 253–54 multilateral conventions, of, 254–55, 262 see also mixed agreements in recent practice; mixity in praxtice treaty partners and mixity, 331–48 ambiguity of EU declarations of competence, 335–37, 339, 347 authentic languages of mixed agreements, 341–42, 345 conceptual and legal challenges associated with mixity, 333–36 disconnection clauses, 337 entry into force of mixed agreements, 345–46 EU and Member States: international responsibility under mixed agreements, 342–43 negotiating with, 338–39 participation in international organisations, 340–41 tension between mixity and standard treaty practice, 333–34 United States, and, 331–32 treaty powers: EU, scope of, 74–77 federalism, and see under federalism and foreign affairs Germany, 68–71 intermational organisations see under international organisations Member States, 77–79, 80, 84–85 United States, 60–62, 70 treaty practice, standard, and tension with mixity, 333–34

Turkey, 17, 28, 117, 250, 280 Turkmenistan, 281 Ukraine, 21, 25, 35 UNIDROIT Convention on Stolen of Illegally Exported Cultural Objects, 166 Union interest, 6, 116, 135–37, 265–67 United Kingdom, 59, 60, 98, 117–118, 123, 182, 212–14 cultural property, and, 166 ECOWAS funding, and, 33–34 Mox Plant, and, 125, 128, 153, 173, 199 negotiating mandates, 307–308 United Nations: conventions and EU, 259 convention on rights of persons with disabilities, 243 multilateral agreements, and, 255 peacekeeping, 215–17 United Nations Agreement on Straddling and Highly Migratory Fish Stocks, 298 United Nations Conference on Trade and Development (UNCTAD), 145 United Nations Convention on the Law of the Sea (UNCLOS), 98–99, 199, 261 adoption of positions under mixed agreements, and, 139, 141, 151, 153, 158 declaration of competence for, 3, 127–29, 173–74, 317, 337, 373 disconnection clauses, and, 173 –74, 179 international responsibility for EU mixed agreement, and, 225, 227 interpretation of mixed agreements, and, 125–29 United States, and, 331–32 United Nations Educational, Scientific and Cultural Organisation (UNESCO): code of conduct, 145, 147, 148–51, 155, 261, 299 Convention on cultural diversity, 145, 147, 150, 155, 261–62, 299 EU contracting party to, 167–68 Convention on cultural property, 166 United Nations Peace Building Committee, 298 United States, 35–43, 213–14, 224, 258, 263, 341, 372

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JOBNAME: Hillion PAGE: 22 SESS: 2 OUTPUT: Fri Apr 23 09:28:50 2010

Index bilateral agreements, and, 332 federalism and foreign affairs, 58, 59–64, 70, 84 foreign affairs, 59–60 treaty-making powers, plenary scope of, 60–62, 70 States, treaty-making powers of, 62–64 Galileo, and, 332, 343–44 multilateral agreements, and, 331–32 Open Skies agreement, 26, 283 SWIFT, and, 271, 293 UNCLOS, and, 331–32 United States v Curtiss-Wright Export Corp (1936), 61 unity of representation, requirement of, 4, 297, 374 duty of cooperation, and, 90–91, 92, 104–105, 112, 242, 282, 369 Uruguay negotiations, 145, 261

FAO, 145, 147–48, 155, 159 international organisations, participation in 340–41 Member States, 255, 271, 312, 340–41 qualified majority, 32, 142–43, 246, 252, 271, 313, 355, 356

Van Gend en Loos [1963], 187, 207 Van Parys [2005], 135, 195–96 Vattel, E de, 63 vertical mixity, 31, 33, 34, 40–44, 51, 52–53 veto, 1, 80, 152, 370 Vienna Convention on the Law of Treaties, 76, 190, 203–205, 223, 257–58, 260, 368, 370 Vietnam, 262 voting, 93, 315, 347, 355, 357, 370 association agreements, on, 17, 370 codes of conduct, and, 145, 311 EFTA, 321 European Council, and, 233, 256, 310, 313, 315, 355 qualified majority voting, 32, 142–43, 246, 252, 313, 355 unanimity, requirement of, 7, 12, 81, 370

weapons of mass destruction (WMD), 234, 236, 238, 245 Weimar Republic and Constitution, 66, 69 Werner [1995], 201 Wessel, Ramses, 13 Westerterp, President, 273 ‘without prejudice’ and non-effect clauses, 164–68 World Health Organisation, 255 World Trade Organisation (WTO), 3, 106, 117, 139, 262, 358, 365 Agreement, 95, 103, 119, 130, 133–34, 141, 151, 227, 266, 365 cases, 211, 227 code of conduct, 147, 155, 261, 282 declaration of competence, 211 dispute settlement, and, 195–96, 202 WTO Dispute Panels and Appellate Body, 210–11, 213–15, 224, 227–25 Doha Development Agenda, 309 ECJ, and, 195–96, 254–55 EU, and, 211, 224–25 management and exercise of shared competences, 4 rules, 122, 134–35 WTO principle, 79 Yugoslavia, Federal Republic of, 30, 211 Zimbabwe, 290

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