"To what extent will the proposed EU constitution affect, the procedure for EU/EC negotiation and conclusion of international agreements"

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Nikolaos Ktenas        


Pr. Steve Peers


Ladbroke House


LLM European & International Law


EU Public Law & International Relations

To what extent will the proposed EU constitution affect, the procedure for EU/EC negotiation and conclusion of international agreements

   Whilst some of the European Union’s relations with international organizations have political or humanitarian roots, the vast majority is economic and relates to the organisation of the world economy. According to the founding Treaties each of the Communities has the capacity to establish relations with certain international organisations and to conclude certain types of international agreements  The most important of these economic organisations that have engaged with the EC since the early years of its existence, are: the International Monetary Fund (IMF), the International Trade Organisation (ITO) and the General Agreement on Tariffs and Trade (GATT) and since 1994 the World Trade Organisation (WTO).

   My analysis will begin by examining the law as it stands according to the articles of the Treaties and case law. This will include a closer look on some established cases that made the EU set up the standards under the proposed constitution. There are three types of international agreements capable of being invoked in the context of EC law, arising from the Community’s powers under Articles 281, 300,133 as we have already noted and finally Art 310 (ex Art 210, 228,133 and 238 EC). First there are agreements which have been concluded by the Community institutions and fall within the treaty making jurisdiction of the European Community. Secondly there are hybrid agreements, like the WTO agreements in which the subject matter lies partly within the jurisdiction of MS and partly within the EC’ jurisdiction. Finally there are agreements which have been concluded prior to the EC Treaty and the EC has assumed that there are inside its jurisdiction, by way of succession, like GATT agreements.

   There have been an enormous amount of cases reaching the ECJ the last thirty or so years, where the main issue had been a question of competence; that of the EU and/or the Member States over the procedure of negotiating and concluding international agreements. On the occasion that there is exclusive competence derogating from the Treaties to the Community, the latter only, can adopt and legislate acts that can be legally binding. On the other situation, which is the most common, the external powers of the Community are shared with the Member States rather than being exclusive; they can both make legally binding acts with the difference that the MS can exercise its competence only once the EU has decided to end its power of competence. According to that, the decision of the ECJ in Case 22/70 Commission v. Council (ERTA) [1971] ECR 263 outlined the concept of external competence. It justified, under the Treaty, the Community’s act to implement a common policy and therefore, there was no area left for the Member States to exercise their powers in common policy. On the same standards the ECJ in Cases 3,4 & 6/76 Kramer [1976] ECR 1279 ruled that the Member States could exercise its share competence, so long as their actions were not incompatible with the Community objectives.  

   The European Union through the cases and the Treaties has created different standards on the procedure of negotiating and finally concluding agreements. Depending upon the nature of the agreements there is a certain policy that should be followed by the MS and the EU institutions. The excluding competence of the EC in the context of trade agreements governed by EC Art. 133 (ex Art 113) has been the subject of substantial case law. The Court held, in paragraphs 16 to 18 and 22 of the ERTA judgment, that the Community's competence to conclude international agreements arises not only from an express right created by the Treaty but may equally develops from other provisions of the Treaty adopted by the Community institutions, within the framework of those provisions. That meant that the EC would have the implied power to act in the international sphere in relation to matters with respect to which the EC has the power to act within the Union under the EC Treaty. Furthermore, the ERTA case appeared to suggest that the competence of the Community in this area was exclusive and the Member States were precluded from acting. The Court went on to confirm that the Council’s proceedings of the 20th of March 1970 were within the framework of the Community and therefore, had legal effects on relations, on one hand between the Community and the Member States, and on the other between international institutions. The reasoning of the Court was based on Art 228 (now 300) EC, which stated the procedure that should be followed. This was giving the Council, the authority to conclude agreements with non-member states and the Commission would have the role of the negotiator. Before the agreement is concluded the Council would consult the European Parliament and after taking into consideration the Commission’s proposals would be able to conclude the agreement. According to Article 228 of the EC Treaty, agreements can be entered into between the Community and one or more non-member states or international organisations. This basic procedure varies both in the voting rules of the Council and the extent of the Parliament’s involvement. The latter, depends upon the nature of the agreement and can involve the EP’s assent or just a consultation or opinion to the Council. Before the draft agreement enters into force, the Council, the Commission or the MS can request an opinion from the European Court of Justice on the compatibility of the agreement with the provisions of this Treaty. In the case where the Court finds that the draft agreement is incompatible with the Treaty, then its opinion like the Court’s judgments becomes binding (Opinion 1/91 Opinion on the draft Agreement on European Economic Area [1991], [1992] CMLR 245, par. 61).

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 In the Opinion 1/78 Natural Rubber [1979] ECR 2871[1979] 3 CMLR 639 the

Commission asked the court for a preliminary opinion on whether the draft international agreement on Natural Rubber, which was the subject of negotiations in the United Nations conference on trade and development (UNCTAD) was compatible with the Treaty and, more particularly, whether the Community was competent to conclude that agreement. It appeared that the right of the Community to participate, in the agreement envisaged, was not in itself contested. The only point of disagreement consisted in determining whether the subject-matter of the agreement came entirely within ...

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