International Agreements

Question 1

What is Art 47 TEU

Answer 1

The Union shall have legal personality

Question 2

What case proves Art 47 - Commission v Council 1971

Question 3

Whats the two powers of external Competence

Answer 3

Primary Powers - Powers given by the treating allowing the EU to act upon trade agreements on behalf of the MS.
Secondary Powers - not explicating granted by treaties - instead the courts have allowed the EU to act based upon implied beliefs.

Question 4

What are the key cases of secondary powers?

Answer 4

Commission v Council (1971)

Kramer

Question 5

What did Commission v Council 1971 conclude?

Answer 5

Even if the treaties do not mention external competence if the EU have been presented internal competence in the area then it should be taken that they have the right to external competence as well.

Question 6

What does Kramer show?

Answer 6

The EU had the internal power to take measures for conservation - provided it with equivalent external power - even if internal power had not been used.

Question 7

What are the 4 conditions of Art 216(1)

Answer 7

1. The Treaties provide or
2. where the conclusion of an agreement is necessary in order to achieve within the framework of the Union’s policies one of teh objectives referred to in the treaties or,
3. is provided for in a legally binding union act or,
4. is likely to affect common rules or alter their scope.

Question 8

Which case proves Exclusive External Competence?

Answer 8

Case 22/70 Commission v Council (ERTA) EU:C:1971:32

Question 9

Why do MS provide the EU with external competence

Answer 9

Prevents MS becoming liable in international law if they conclude an agreement that is incompatible with EU law.

Question 10

What is a case where a MS stood outside of their jurisdiction and into the EU’s external competence

Answer 10

Case C-45/07 Commission v Greece EU:C:2009:81

Question 11

Is Competence shared in regard to MS dealing with third parties.

Answer 11

Competence is initially shared BUT once common rules had been adopted internally “the [Union] alone is in a position to carry out contractual obligations towards third countries”

Question 12

In what situation do MS lose the right to make international agreements?

Answer 12

MS lose the ability to make international agreements in the area covered by the common rules – their competence is pre-empted by the EU. - Conditional Exclusivity

Question 13

Which ruling argues that the existence of internal competence does not automatically grant external competence?

Answer 13

Opinion 2/92 OECD Decision on National Treatment EU:C:1995:83

Question 14

What are the 3 situations that lead to exclusivity?

Answer 14

1. The matters are already covered by internal legislation which could be affected by the international agreement.
2. There is internal legislation “effecting complete harmonisation” of the area.
3. Internal legislation expressly empowers the EU institutions to negotiate with non-member countries.

Question 15

Which article of TFEU codifies the exclusive competence idea?

Answer 15

Art. 3(2) TFEU: The Union shall … have exclusive competence for the conclusion of an international agreement when:
[1] its conclusion is provided for in a legislative act of the Union or;
[2] is necessary to enable the Union to exercise its internal competence, or;
[3] in so far as its conclusion may affect common rules or alter their scope.

Question 16

When competence falls outside of Art 3 TFEU what happens?

Answer 16

It is seen as a shared Art 4 (1) TFEU

Question 17

What are the three different types of outcome of an international agreement?

Answer 17

1. Agreements between EU and third countries - EU has exclusive competence - EU and MS become bound
2. Agreements between MS and third countries - the EU is bound and it is outside of its competence
3. Mixed agreement - where the subject matter of the agreement covers both EU and MS competence.

Question 18

What is the Procedure of Art 218 TFEU

Question 19

Who authorises the opening negotiations?

Answer 19

The council authorises the opening of negotiations. under Art 218(3)

Question 20

Who nominates the EU negotiator and provides adoption of negotiating directives?

Answer 20

1. Council - Art 218 (3) - for agreements connected with the common commercial policy must be the commission - Art 207(3)
2. The council - Art 218(2)

Question 21

Who authorises the conclusion of the agreement?

Answer 21

The council authorises- Art 218(5) and concludes - 218(6)

Question 22

How does the council operate to come to a decision?

Answer 22

Qualified majority - exceptions where unanimity is required - set out in Art 218(8)

Question 23

What is demanded by Art 218(10)?

Answer 23

That the Parliament is kept immediately and fully informed at all stages.

Question 24

When does the Council require authorisation to conclude from the Parliament

Answer 24

When the agreement falls within one of the listed circumstances in Art 218(6)(a)

Question 25

What does Art 218(6)(b) state

Answer 25

That unless the agreement relates to the CFSP, the council only needs to consult the parliament.

Question 26

Who can rectify agreements which cover issues within the EU’s exclusive competence?

Answer 26

The Council

Question 27

Whats the difference between rectifying mixed agreements and exclusive competence agreements?

Answer 27

For mixed agreements the Council and every member state must approve.

Question 28

Art 216(2)

Answer 28

Once an international agreement comes into force, it is an “integral part of EU law” – Case 181/73 Haegeman EU:C:1974:41.

Question 29

What does the case of Fruit Company set out?

Answer 29

International Fruit Company sets out the doctrine of functional succession – the Union is bound by agreements in which the field of the agreement now falls within Union competence such that it is the replacement for the MS.

Question 30

When did the CJEU find that Fruit Company did not apply?

Answer 30

Where not all MS were party to the original agreement – Case C-188/07 Commune de Mesquer EU:C:2008:359
Where not all the powers in the field of the agreement have been assumed in their entirety by the Union – Case C-366/10 Air Transport Association of America EU:C:2011:864

Question 31

What does Art 351(1) Set out

Answer 31

The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, 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.

Question 32

What does the Case of Attorney General v Burgoa set out?

Answer 32

The EU is not itself bound by the agreement, the institutions are simply under a duty not to impede the performance of the MS’ obligations

Question 33

What does Art 351(2) set out

Answer 33

To the extent that the agreement is not compatible with the Treaty, the MS concerned “shall take all steps to eliminate the incompatibilities”

Question 34

What position does P and Kadi v Council and Commission leave international treaties in-regard to EU law

Answer 34

“Article [216 TFEU] provides that agreements concluded under the conditions set out in that article are to be binding on the institutions of the [Union] and on Member States. Thus, by virtue of that provision … [international agreements] … would have primacy over acts of secondary [Union] law

Question 35

What did Hermes International conclude about the CJEU jurisdiction in mixed agreement cases

Answer 35

CJEU had jurisdiction to interpret the provision both in relation to Union and non-Union trade-marks.