European Union 9 Foreign Relations International Summer School 2015 Renmin University of China, Beijing Syllabus Prof. Dr. Werner Meng

Overview  Legal Personality  Particular Situation in the EU/EU  EU in the PIL Legal Order  PIL in the EUs Legal Order

Different Laws Individuals State EUL PIL

Legal Personality  Nature of the EU  IO with supranational character  Rules of Public International Law (PIL)  IOs may be subjects of, legal persons in PIL, if their members want that and other subjects of PIL recognize that (constitutive? Declaratory?)  Rules of EU Law: Art. 47 TEU et al.

PIL subjectivity in EU law  EU ?  Art. 47 TEU: The Union shall have legal personality.  Treaty-making powers  Generally: Art. 216 TFEU  Trade Policy: Art. 207  Treaties of association: Art. 217  Relations with and representation in International Organizations  Art. 220, 221  Diplomatic Relations (active and passive) (27 para. 3 TEU – Foreign Service of the EU)  EAC  Art. 101 EAC

Particular Situation in the EU  PIL obligations of the MS  PIL obligations of the EU  Division of Powers MS / EU  Dynamics of this Division

PIL in EU Law  ECJ: Public International Law is an integrated part of EU Law  As far as it binds the Community (PIL relations are relative!)  Art. 216 para. 2 TFEU: „Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States“  Because of Art all secondary law has to be or to be interpreted in conformity with PIL Primary CL Secondary CL PIL binding on the EU

Treaty Law in EU Law  To be executed by a regulation or directive, if the treaty is not unconditional and clear  may be directly applicable, if Varying results of direct application PIL Treaty ordered by CL not excluded by the treaty itself unconditional and clear like directly applicable CL Binding as objective CL on all EU organs Necessary yardstick for evaluating lawfulness of CL Subjective rights of individuals Substantive law rights Procedural rights (invocability)

Old treaty law  Treaties  concluded before the accession to the EU  Giving persisting rights to third states against new MS  Remain valid if concluded with third states  Consequences: Art. 351 TFEU  Binding now also the EU  Compliance in conformity with UL (351.3)  Member states have to endeavor to adapt those treaties to UL by mutual agreement with the treaty partners  Yield to UL if concluded with states that became now members of the EU

Other PIL in EU Law  EU is also bound by PIL customary law and general principles of law  ECJ C-286/90, Poulsen und Diva Navigation - EUR 1992, I , Tz. 9 – customary law of the sea  ECJ C-162/96, Racke - EUR 1998, I-3655 – clausula rebus sic stantibus (why not directly VCLT?)  ECJ T-115/94, Opel Austria - EUR 1997, 39 (good faith)

Direct application without Union legislation  Prerequisites  Text, content and scope of the agreement make it susceptible to direct application by courts (question of separation of powers!)  Text contains clear and unequivocal duties  That are not dependant on further community acts in order to be performed  cf. ECJ /86, Demirel - EUR 1987, 3719  Facets  Objective application  Subjective rights  Express exclusion  By the Council in the decision of ratification?  By consensus of the parties of the treaty  Reciprocity is not necessary (ECJ Kupferberg, 104/81 - EUR1982, 3641)  Separation of power (WTO))  Examples  Free trade agreements  Treaties of association, Europe Agreements  Treaties of Cooperation

EU in the PIL Legal Order  EU in relation with States  Treaty Making Power  Mixed Agreements  Relations to Int. Organizations (220)  Economic Sanctions (215)

The EU in International Organizations  EU in intergovernmental organizations  Membership of the EU: WTO, FAO, sev. Commodity Agreements, Internationale Energieagentur (in most cases mixed)  Membership of the MS (as trustees): e.g.ILO, OEUD, ICAO, Council of Europe  Observer Status: UN (Res (XXIX) vom (GAOR 29th, Supp. 31, S. 2) )  Art. 220 TFEU: necessary relations to other IOs  Representations in the organs  No monopoly of the Commission  But art. 321 for day-to-day diplomatic representation  No treaty making power (arg. e EU)  Divergent Practice  Representation by the Presidency of the Council (UN)  Bicephalous representation  Representation by the Commission as speaker for the EU and all member states (Rome formula for the commodities agreements, but generalized for most mixed agreements)

Foreign Powers: EU or Member States? Eclusive Powers MS have no power to conclude PIL treaties in these areas Consequences of unlawful conclusion: Art. 46 VCLT Trade Policy (instrumental approach) even if there are also other motives guiding the activity(ECJ opinion 1/78 - EUR 1979, 2871 (International Rubber Agreement) Concurring Powers Power rests with the MS until the EU has used the power internally Powers partly of the EU and partly of its MS Common treaty-making (ECJ opinion 1/94 - EUR 1994 I, 5267 (WTO)

Exclusive Foreign EU Powers  Article 3  1. The Union shall have exclusive competence in the following areas:  (a)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;  (e)common commercial policy.  2. 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.

ERTA principle (Mirror theory)  ECJ 22/70 (ERTA)  1. The Community enjoys the capacity to establish contractual links with third countries over the whole field of objectives definedby the Treaty. This authority arises not only from an express conferment by the Treaty, but may equally flow from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions.  In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they 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 or alter their scope.  I.e.: if there is internal legislation, the Union has the exclusive external powerForeign Powers 2

Treaty-making process (Art. 218 TFEU)  Council with the participation of the High Representative and the Commission (recommendations)  Consensus in the Parliament, particularly if areas of internal participation of the EP are concerned, considerable financial consequences are at stake or a particular institutional frame is created.  Mostly decision by qual. Majority, exceptionally by consensus  Asking the ECJ for a legal opinion before signature Authorisation for negotiation Guidelines for negotiations Authorisation/ Signature / Preliminary Application Conclusion / Ratification

Mixed Agreements  Possibility  Express powers under Art. 102 EAC  Generally if treaty relates partly to EU powers and partly also to MS powers  External aspect  Rule: EUs and their MS are jointly and severally liable for the performance of all duties, no matter who has the power internally  Exception: Declaration of separate powers  Common negotiation by the Commission (supervised by the Council, cf. also art EU)  Common Conclusion by the EUs as well as the MS  Internal Aspect  Differentiation of powers necessary  Common features  Treaty Making  Execution  Interpretation (ECJ)  Liability

Mixed agreement: WTO agreements  Example for a mixed treaty (opinion 1/94): the WTO treaties  Scope of GATS (Art. I para. 2)  Services across the borders  Services performed abroad  Business established abroad  Provider established abroad  Only the first case is so far covered by CL and generates a Community power  If the EU regulates the other cases it is bound by GATS: community power originates thereafter and transfers the treaty obligations to the EU  Meanwhile the member states are bound  They have to apply GATS by a common standard: obligation of good faith under art. 10 EU

Mixed Agreements: ILO Conventions  ECJ opinion 2/91 - EUR 1993, I-1061 (ILO - Convention No. 170 – Hazardous chemical substances at the workplace)  Internal power: Art. 153, executed by the EU, but 137.5: More severe rules by the MS  Common Power, „shared powers “, common representation  If the EU is not able to participate in a convention, the MS have to act in common solidarity in her interest and try to change the right to join in favor of the Community

Mixed Agreements - Fisheries  ECJ – 804/79, KOM/VK – EUR 1981, 1045  Art. 102 of the UK accession act: Transfer of exclusive power for fisheries preservation management after a transition period to the EU)  EU had not acted after this transfer  However: transfer cannot be reverted  Existing measures may be prolonged, but adapted to the new situation (default powers)  MS have a duty to act on behalf of the community  Duty to respect community law  Notification to the Commission and respect for directives given by the COM

Economic Sanctions  Basic Decision: CFSP (Title 5 ch. 2 TEU, see art. 26, 28 and 31)  Exercise: EU (215.2)  Article Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.  2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.  3. The acts referred to in this Article shall include necessary provisions on legal safeguards.  Possibly mandated by the UN (7th chapter UN charter, art. 42)

Economic Sanctions  Prerequisite: Common standpoints or actions within the CFSP (Art. 21 ss TEU > Embargo on trade and capital movements with third states)  Special power: art. 75 TFEU for restrictions in the area of payments and capital movements (fight against terrorism)  General Power: art. 215 TEU in other trade areas  Separate actions of MS remain possible according to art EU until the Council stops that with qualified majority.  Is this also possible in the area of art. 301? Cf. Art EU

Problems of Application  Power to conclude the treaty  Of the EU  Of an EU organ  Lawful conclusion  Otherwise the treaty is void under domestic EU law and bears neither rights nor obligations (internally)  Substantive lawfulness under EU primary law  If not, a treaty change is necessary (art EU)  Direct application in favor of individuals  Unlawfulness may be invoked in courts  Subjective rights and obligations  Externally binding force if treaty is concluded unlawfully? > Art. 46 Vienna Convention on the Law of Treaties? Liability?