Connected or Disconnected?The EU and International Law Lecture 3: The EU and the Law of Treaties

Prof. Pieter Jan KUIJPER

The EU and the Law of Treaties

Pure EC/EU (new) Agreements. “Old EU” Agreements

Mixed Agreements General

Bilateral

Multilateral

Disconnection clauses

Future of Mixed Agreements

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Community/Union Agreements In principle familiar/acceptable to third States

Reparations for Injuries Case, ICJ 1949.

ILC Discussions on the 1986 Vienna Convention.

Art. 216 (2) TFEU and Art. 36bis of ILC draft for 1986

Convention.

Who (EU or MS) is bound with respect to whom?

Internal “constitutional position”.

External “international law position”.

Difference between the two.

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“Old EU Agreements”

No legal personality for “old EU” Treaty-making power: old Art. 25 TEU De facto: two treaties – two international persons. Unproblematic in CFSP: technical agreements on

police operations and security exchange. Problematic in Third Pillar: touched citizens’ rights

– required national Parliaments’ approval. Highly contested agreements. PNR etc.

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Normal Treaty Techniques. Normal Treaty Techniques available (Art 218):

Negotiation: Double-hatted or double-headed?

Signature and Provisional Application.

Conclusion (influence EP!)

Simplified procedure for small modifications

Suspension of application of the agreement

Termination of treaties (everywhere a problem!)

Position in a treaty body taking acts having legal effects (Great

problems during Doha Round neg.)

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Special EU ‘Abnormalities’

Territorial scope of EU Treaties. Territory covered by the EU Treaties.

Exceptions: only customs territory etc

Opt-outs and Opt-ins. UK, Ireland and Dk. Which opt-outs are possible?

When is opting in possible in external instruments?

When does UK, Eire or Dk have to decide?

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Mixed Agreements - General

Not in TEC, TEU or TFEU, but in Euratom Treaty (Art. 102).

Why resort to “mixity” in EC/EU domain? For reasons of necessity:real problems of competence

For reasons of expediency: avoid an internal dispute

For political reasons: wish of the MS.

How do third states look at mixed agreements? Against the billiard ball approach to internat’l relations

Depends on bilateral or multilateral character

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Mixed Agreements - Bilateral

Bilateral Character is clear from text EU/EC and its MS of the one part and country X of the other part.

Complementary character of MS and EU powers clear

Nevertheless, Third States do not invariably see it that way – they are

not used to an international personality externalizing its structural

problems.

Parallel with “federal state clause” in treaties?

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Mixed Agreements - Bilateral 2 Problems discerned by third States

Problems related to the negotiation:

Choice for mixity made late

Who leads the negotiation?

Authentic languages

Entry into force – ratification

And to be discussed later:

Speaking, voting etc. in treaty bodies

International responsibility

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Mixed Agreements - Multilateral

Mixity often “hidden” in multilateral treaties. Third States don’t see clearly the “EU and its MS of

the one part” in negotiations, and not at all afterwards.

Third States believe this is a normal multilateral

agreement, where treaty relations exist normally

between Member States.

That this is not so, can be made clear in two ways:

By declarations of competence

By disconnection clauses

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Declarations of Competence

The problems of declarations of competence Externalization of “federal problems”. ECJ changes

position over time.

Opinion 1/78.

MOX Plant.

Result of internal compromises: unclear content.

General terms about evolutionary character

Reference to Treaty articles + EU legislation

Virtually never adjusted to evolutions in

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Disconnection Clauses. A short history of disconnection clauses.

Initially in treaties where the EC/EU was not a party.

Later also in treaties where EC/EU was a party.

Totally different intention and effect.

New version of the disconnection clause.

Do disconnection clauses go too far? They are agreed by all parties to the Treaty.

The new version has a limited, but useful function

They show that the EU + MS are one “group” and

externalize “federal problems.” Declarations better?

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Examples of Disconnection Clauses

OLD VERSION (since 1970s) In their mutual relations, Parties which are Members of the European

Economic Community shall apply Community rules and shall therefore not apply the rules arising from this Convention except in so far as there is no Community rule governing the particular subject concerned.

NEW VERSION (2005) Parties which are members of the European Union shall, in their mutual

relations apply [Community and] European Union rules in so far as there are [....] European Union rules governing the particular subject concerned and applicable in the specific case, without prejudice to the object and purpose of the present Convention and without prejudice to its full application with other Parties.Accompanied by a special declaration.

Mixed Agreements after Lisbon

Insofar as “political clauses” caused mixity, it could disappear: trans-treaty Union Agreements would take their place.

Insofar as remaining MS powers in the TFEU-context cause mixity, it cannot disappear.

Will the same dynamics that caused “political mixity”, bring about an increased CFSP influence over the TFEU-side of things?

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The Union Courts and the Law of Treaties Courts have a long tradition of having recourse

to the law of treaties (Vienna Convention 1969)

Basis is Art. 3(b) Vienna Convention Case C-386/08 Brita

Recourse to rules of interpretation (Art 31 ff) Agreements concluded by the Union ( no direct effect

– e.g. Case C-308/06 Intertanko)

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The Union Courts and the Law of Treaties 2 Recourse to the law of treaties (Vienna Convention

1969) cont. Union Treaties themselves

Recourse to related documents (Cases T-187/99 and C-321/01P Agrana Zucker)

Recourse to practice (Cases C-327/91 Fr. v. Comm. and C-91/05 –Ecowas/SALW)

Good faith In treaty interpretation: Case C-268/99 Jany et al. In treaty performance: AG Colomer in C-431/05 Merck-Genericos.

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