4 - Autonomy of EU Law and Mixed Agreements in Areas of CTI

Question 1

What does this lecture on autonomy of EU law and mixed agreements in areas of CTI touch upon? (6)

Answer 1

1/ legal and political reasons for mixity in trade agreements

2/ consequences of mixity in trade agreements

3/ autonomy of EU law and consequences for IAs binding the EU

4/ constraints autonomy EU law imposes on decision-making

5/ ability of EU to conclude IAs containing DS mechanisms

6/ safeguards IAs need to contain to preserve autonomy EU law

Question 2

General considerations on CETA? (5)

Answer 2

1/ mixed agreement

2/ FTA of basic level

3/ liberalises trade of goods and services btwn EU and Canada

4/ provisions on regulatory cooperation

5/ investment chapter with ISDS mechanism

Question 3

What did Wallonia do regarding CETA? (2)

Answer 3

1/ blocked CETA

2/ possible bc foreign policy powers fall within competence of Walloon parliament and mixed agreements require ratification of all MS before they enter into force

Question 4

What did Belgium do in light of Wallonia’s blocking of CETA?

Answer 4

Belgium requested opinion from CJEU on whether CETA is compatible with Treaties (Opinion 1/17)

Question 5

What are mixed agreements? (3)

Answer 5

1/ IAs concluded jointly by EU and MS

2/ both EU and MS are exercising their competences over part of the agreement

3/ hallmark of EU external relations law bc allow EU to conclude IAs in areas outside of its competence

Question 6

Why are mixed agreements concluded? (3)

Answer 6

1/ compulsory mixity: legal necessity for mixed agreement bc EU and MS exclusive competence

2/ facultative mixity: choice to go for mixed agreement bc shared or parallel competence

3/ cf duty of loyalty

Question 7

Considerations on the negotiation of mixed agreements? (4)

Answer 7

1/ require a decision authorising negotiations and issuing negotiating directives

2/ such a decision is an act producing legal effects

3/ such a decision must therefore comply with basic constitutional requirements

4/ procedure must be transparent, but most often still unclear in practice

Question 8

What are the basic constitutional requirements to be fulfilled by the decision authorising negotiations and containing negotiating directives for mixed agreements? (2)

Answer 8

1/ indication of legal basis (Commission v Council (CITES))

2/ no possibility of hybrid decisions (Commission v Council)

Question 9

Why are hybrid decisions for negotiation and negotiating directives mixed agreements not authorised? (4)

Answer 9

Commission v Council

1/ procedures established under EU Treaties must be followed

2/ autonomy of EU legal order does not allow MS to participate in EU decision-making

3/ EU institutions cannot participate in areas of MS competences

4/ hybrid acts would make it impossible to discern which acts reflect will of Council and which the will of the MS

Question 10

Procedure for conclusion mixed agreements? (2)

Answer 10

1/ Council and MS decision required

2/ hybrid decisions not possible

Question 11

What is the usual practice for the conclusion of mixed agreements? (4)

Answer 11

1/ practice of the ‘common accord’

2/ Council waits to adopt its decision on conclusion of IA until all MS have accomplished their national ratifications

3/ rationale: EU does not wish incomplete mixity

4/ however, practice of common accord is not a requirement flowing from the Treaties, Art. 218 TFEU in particular (Opinion 1/19)

Question 12

Considerations on the implementation of mixed agreements? (3)

Answer 12

1/ duty of loyal cooperation requires that MS and EU institutions have an obligation of close cooperation

2/ amounts to duty to inform and consult

3/ also duty to remain silent and to abstain

Question 13

When is there a duty to abstain? (4)

Answer 13

1/ see Commission v Sweden (PFOS)

2/ existence of a common strategy

3/ disassociation from common strategy

4/ which has consequences for the EU

Question 14

Who has jurisdiction to interpret mixed agreements? (4)

Answer 14

1/ ECJ

2/ but only insofar as EU has exercised its powers

3/ if EU has not exercised its powers nor adopted provisions to implement obligations deriving from mixed agreement, the obligations derived from the mixed agreement continue to be covered by national law of MS (Slovak Bears I)

4/ in such cases, it is for NCs of MS to determine the legal effects of the IA on the basis of national law (Slovak Bears I)

Question 15

Procedure for withdrawal from mixed agreements? (3)

Answer 15

1/ Art. 218 TFEU does not specify procedure to be followed

2/ arguably, same procedure as for conclusion IAs should be followed

3/ cf also practice of ‘coordinated withdrawal’, which is not a legal requirement but preferable from a PIL pov

Question 16

What are concerns raised by mixity? (4)

Answer 16

1/ is it in line with pcples of democratic decision-making?

2/ who is responsible for what?

3/ to whom are decision-makers accountable and when?

4/ under current practice, still impossible to discern which acts reflect will of of Council and which will of MS (Commission v Council)

Question 17

Why can autonomy of EU law also be seen as an obstacle for the conclusion of IAs by the EU? (2)

Answer 17

1/ autonomy is obstacle when IA is not in line with EU constitutional requirements

2/ cf Opinion 2/13 on EU accession to ECHR

Question 18

What is autonomy of EU law? (3)

Answer 18

1/ concept concerns relationship btwn EU law and MS law/PIL

2/ cf VGL (1962)

3/ EU law operates independently from national law and IL

Question 19

What is the justification of autonomy EU law? (2)

Answer 19

1/ EU law is special

2/ institutional framework and objectives

Question 20

What does autonomy EU law mean? (3)

Answer 20

1/ EU law operates independently from MS law and IL (legal effects and hierarchical relationship)

2/ ECJ gives meaning to provisions EU law

3/ MS authorities must immediately set aside all incompatible law and give precedence to EU law

Question 21

Rationale autonomy of EU law in EU external relations law? (2)

Answer 21

1/ autonomy of EU law may also be threatened by IL

2/ esp. through violations of EU primary law, which negatively affects its special nature

Question 22

What are examples of autonomy EU law being threatened by IL? (2)

Answer 22

1/ agreements concluded btwn EU and 3rd parties which are incompatible with EU Treaties

2/ MS IAs and/or obligations which are incompatible with EU Treaties

Question 23

What are examples of violations of EU primary law by IL? (3)

Answer 23

1/ violation of substantive provisions and pcples (eg. FR, mutual trust)

2/ violation DP btwn EU/MS

3/ incompatibility with EU institutional framework, esp. powers CJEU

Question 24

Considerations on interplay btwn international bodies & courts and the autonomy of EU law? (2)

Answer 24

1/ EU can conclude IAs creating bodies that can bind EU institutions (Opinion 1/17 (CETA))

2/ but such IAs must be compatible with autonomy EU law, ‘safeguarding essential character of powers EU institutions’ (Opinion 1/17 (CETA))

Question 25

What is the ‘essential character’ of the CJEU’s powers? (3)

Answer 25

1/ securing uniform interpretation EU law through PR mechanism

2/ ruling on validity EU law

3/ ruling on DP btwn EU and MS

Question 26

What are safeguard clauses for CETA DS mechanism? (4)

Answer 26

1/ Tribunal does not have jurisdiction to determine legality of a measure allegedly breaching CETA

2/ to determine consistency of measure with CETA, Tribunal may consider domestic law only as a matter of fact

3/ Tribunal must follow prevailing interpretation given to domestic legislation

4/ any meaning given to domestic law by Tribunal is not binding on courts/authorities Party

Question 27

Why was CETA DS system ruled compatible with EU Treaties in Opinion 1/17? (4)

Answer 27

1/ EU law not part of applicable law of CETA

2/ EU law only taken into account when tribunals examine compatibility EU law with IA

3/ CETA tribunals cannot rule on DP btwn EU and MS

4/ it is for EU to decide on respondent in a particular case

Question 28

What is the regulatory understanding of the ‘essential character’ of powers of EU institutions with regulatory powers? (3)

Answer 28

1/ IA incompatible with EU law if capable of having consequence that EU or MS implementing EU law has to amend or withdraw legislation bc of assessment made by tribunal outside EU judicial system

2/ therefore, EU cannot conclude IAs that set up bodies which can call into question choices democratically made on level of protection of public interest

3/ but this is only so if such bodies can only award monetary damages ultimately requiring abandonment level of protection set by EU

Question 29

Hoe is EU law relevant to EU’s international climate, trade and investment policies? (4)

Answer 29

1/ autonomy mainly relevant where IAs set up bodies that can take independent decisions which may affect essential character of powers EU institutions

2/ trade agreements contain State to State DS

3/ investment agreements contain ISDS

4/ int. envtal agreements contain compliance and monitoring mechanisms

Question 30

Summary of lecture on lecture on autonomy of EU law and mixed agreements? (4)

Answer 30

1/ EU law is special, also in external relations context

2/ special nature of EU law creates complication and limitations when EU acts externally

3/ this is particularly the case in relation to the life-cycle of mixed agreements

4/ as well as in relation to constitutional limitations for EU to set up int. bodies under IAs