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 The Courts and Treaty Law Lecture 3: The EU and the Law of Treaties2

Community/Union Agreements In principle familiar/acceptable to third States Reparations for Injuries Case, ICJ 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. Lecture 3: The EU and the Law of Treaties3

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. Lecture 3: The EU and the Law of Treaties4

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.) Lecture 3: The EU and the Law of Treaties5

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? Lecture 3: The EU and the Law of Treaties.6

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 internatl relations Depends on bilateral or multilateral character Lecture 3: The EU and the Law of Treaties7

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? Lecture 3: The EU and the Law of Treaties8

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 Lecture 3: The EU and the Law of Treaties9

Mixed Agreements - Multilateral Mixity often hidden in multilateral treaties. Third States dont 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 Lecture 3: The EU and the Law of Treaties10

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 external powers. Lecture 3: The EU and the Law of Treaties11

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? Lecture 3: The EU and the Law of Treaties12

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? Lecture 3: The EU and the Law of Treaties.14

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) Lecture 3: The EU and the Law of Treaties15

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. Lecture 3: The EU and Law of Treaties16