EU: Bilateral Agreements of Member States

Formerly concluded international agreements of Member States with third countries Article 351 TFEU The rights and obligations arising from agreements concluded before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established.

Formerly concluded international agreements of Member States with third countries - 2 In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.

Bilateral Agreements of Member States Regulation No 662/2009 Regulation 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 Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries often reflecting special ties between a Member State and a third country and are intended to provide an adequate legal framework to meet specific needs of the parties concerned.

Bilateral Agreements of Member States – Regulation 662/09 Former agreements: Member States should take all appropriate steps to eliminate any incompatibilities between the Community (Union) acquis and international agreements This may involve the need for the re-negotiation of such agreements.

Bilateral Agreements of Member States – Regulation 662/09 Conclusion of new agreements with third countries relating to areas of civil justice: In its Opinion 1/03 relating to the conclusion of the new Lugano Convention, the Court of Justice: exclusive EU competence to conclude an international agreement like the Lugano Convention with third countries on matters affecting the rules laid down in EU secondary legislation. Consequently: It is for the Union to conclude agreements between the EU and a third country on matters falling within the exclusive competence of the Union.

Bilateral Agreements of Member States – Regulation 662/09 A coherent and transparent procedure should be established to authorise a Member State to amend an existing agreement or to negotiate and conclude a new agreement, in particular where the Union itself has not indicated its intention to exercise its external competence. It should be regarded as an exceptional measure and should be limited in scope and in time. Member State needs an authorisation to open or continue formal negotiations on an agreement as well as to conclude an agreement.

Bilateral Agreements of Member States – Regulation 662/09 When authorising the opening of formal negotiations, the Commission should be able, if necessary, to propose negotiating guidelines or request the inclusion of particular clauses in the envisaged agreement.

Bilateral Agreements of Member States – Regulation 662/09 Where the Commission intends not to authorise the opening of formal negotiations or the conclusion of a negotiated agreement, it should, before giving its reasoned decision, give an opinion to the Member State concerned. In the case of refusal to authorise the conclusion of a negotiated agreement the opinion should also be submitted to the European Parliament and to the Council.

Bilateral Agreements of Member States – Regulation 662/09 In order to ensure that the negotiated agreement does not constitute an obstacle to the implementation of the Union’s external policy on judicial cooperation in civil and commercial matters, the agreement should provide either for its full or partial denunciation in the event of the conclusion of a subsequent agreement between the Union on the one hand, and the same third country, on the other hand, on the same subject matter, or for a direct replacement of the relevant provisions of the agreement by the provisions of such subsequent agreement.

Bilateral Agreements of Member States – Regulation 662/09 The United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation. Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application

Hague Conventions and EU Exclusive Competence Some international agreements fall into the the exclusive competence of the Union Different situations: Member States may become or remain parties of international agreements falling within exclusive Union competence

Hague Conventions and EU Exclusive Competence Reasons: 1. EU is excluded from participation 2. It is regarded as being in the Union interest for the Member States to participate 3. Exclusive competence has arisen after the conclusion of an agreement by the M.S.

Hague Conventions and EU Exclusive Competence The ECJ has taken the view that Member States party to the agreement are acting on behalf of the Union, and in its interests The international agreement is not formally an Union agreement International identity of the Union may be represented by Member States

Hague Conventions and EU Exclusive Competence The Member States, acting in the field of exclusive Union competence and as trustees of the common, or Union, interests are subject to the supervision of the Commission. In fields within exclusive Union competence the Member States may act only with Union authorisation.

Hague Conventions and EU Exclusive Competence Example: Member States are to make a Declaration at the time of ratification or accession that as between the EU Member States, recognition and enforcement of judgments are covered by EU rules. (the 2002 Council decision authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on Parental Responsibility)

Hague Conventions and EU Exclusive Competence Where authorisation is given to a M.S. on an individual basis: Distinction needs to be made between those cases where the M.S. acts on behalf of the Union the M.S. acts on its own account, albeit under Union authorisation

Hague Conventions and EU Exclusive Competence Special case: Agreement concluded by one Member State binding on the Community (Union): Delegation to Italy of the power to conclude agreements on the use of the Euro with San Marino and Vatican City (the Holy See) – concluded by one M.S., but binding the Union

Hague Conventions and EU Exclusive Competence Community (Union) law obligations arising for the M.S. IMPLICATIONS: Union law level International law level National constitutional law level Competence to implement the agreement will lie with the Union or the M.S.?

Hague Conventions and EU Exclusive Competence Council Decision (2008/431/EC) authorising certain Member States to ratify, or accede to, in the interest of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law

Hague Conventions and EU Exclusive Competence The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of judicial decisions. Council Decision 2003/93/EC of 19 December 2002 authorised the Member States to sign the Convention in the interest of the Community.

Hague Conventions and EU Exclusive Competence Certain Articles of the Convention affect secondary Community legislation on jurisdiction and recognition and enforcement of judgments, in particular Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II).

Hague Conventions and EU Exclusive Competence The Member States retain their competence in the areas covered by the Convention which do not affect Community law. The Community (Union) and the Member States thus share competence to conclude the Convention.

Hague Conventions and EU Exclusive Competence Pursuant to the Convention, only sovereign States may be party to it. For that reason, the Community (Union) may not ratify, or accede to, the Convention. The Council should therefore authorise the Member States, by way of exception, to ratify, or accede to, the Convention in the interest of the Community (Union), under the conditions set out in this Decision.