Mixed Agreements Revisited The EU and its Member States in the World

by Hillion, Christophe; Koutrakos, Panos

• ISBN13: 9781841139548
• ISBN10: 1841139548
• Format: Hardcover
• Copyright: 2010-05-14
• Publisher: Hart Publishing

Summary

Mixed agreements are one of the most significant and complex areas of EU external relations law. They are concluded by the Member States and the EU (or the European Community in the pre-Lisbon days) with third countries and international organisations. Their negotiation, conclusion and implementation raise important legal and practical questions (about competence, authority, jurisdiction, responsibility) and often puzzle not only experts in countries and organisations with which the EU works but also European experts and students. This book, based on papers presented at a conference organised by the Universities of Leiden and Bristol in May 2008 provides, a comprehensive and up-to-date analysis of the legal and practical problems raised by mixed agreements. In doing so, it brings together the leading international scholars in the area of EU external relations, including two Judges at the European Court of Justice and a Judge at the EFTA Court, along with legal advisors from EU institutions, Member States, and third countries. The book will be of interest to European and international law academics and students, officials in EU institutions, practitioners of EU and international law, political scientists and international relations scholars, and students of European law, politics, and international affairs.

Author Biography

Christophe Hillion is professor of European Law at the University of Leiden, and researcher at the Swedish Institute of European Policy Studies (Stockholm).
Panos Koutrakos is Professor of European Union Law and Jean Monnet Professor of European Union Law at City, University London.

Table of Contents

Acknowledgements	p. v
Contents	p. ix
List of Contributors	p. xvii
Introduction	p. xix
Opening Remarks-Evolution of Mixity since the Leiden 1982 Conference	p. 1
Typology of Mixed Agreements	p. 9
A Typology of Mixed Bilateral Agreements	p. 11
Cross-pillar Mixity: Combining Competences in the Conclusion of EU International Agreements	p. 30
The Constitutional Framework	p. 55
Federalism and Foreign Affairs: Mixity as a (Inter)national Phenomenon	p. 57
Mixity and Coherence in EU External Relations: The Significance of the 'Duty of Cooperation'	p. 87
Interpretation of Mixed Agreements	p. 116
Adoption of Positions under Mixed Agreements (Implementation)	p. 138
Disconnection Clauses in EU Law and Practice	p. 160
Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order	p. 187
International Responsibility for EU Mixed Agreements	p. 208
Practice and Actors of Mixed Agreements	p. 229
Mixity in Practice: Some Problems and Their (Real or Possible) Solution	p. 231
Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States	p. 249
Mixed Agreements from the Perspective of the European Parliament	p. 269
Mixity in Practice-A View from the Netherlands	p. 295
Mixity in Practice-A Member State Practitioner's Perspective	p. 304
Mixity Seen from Outside the EU but Inside the Internal Market	p. 320
Mixity from the Outside: the Perspective of a Treaty Partner	p. 331
The Future of Mixed Agreements	p. 349
Mixity in the Era of the Treaty of Lisbon	p. 351
The Future of Mixity	p. 367
Index	p. 375
Acknowledgements	p. v
Summary Contents	p. vii
List of Contributors	p. xvii
Introduction	p. xix
Opening Remarks-Evolution of Mixity since the Leiden 1982 Conference	p. 1
Introduction	p. 1
What has Happened in the Meantime?	p. 2
Conclusion	p. 7
The Future	p. 7
Typology of Mixed Agreements	p. 9
A Typology of Mixed Bilateral Agreements	p. 11
Introduction	p. 11
Why Bilateral Mixity?	p. 14
Different Categories of Mixed Bilateral Agreements	p. 16
Association agreements	p. 17
Cooperation agreements of a general nature without association	p. 20
Mixed trade and cooperation agreements with political dialogue	p. 24
Mixed sectoral agreements without political dialogue	p. 24
Concluding Remarks	p. 27
Cross-pillar Mixity: Combining Competences in the Conclusion of EU International Agreements	p. 30
Introduction: the Conclusion of EU International Agreements	p. 30
Forms of Mixity in the Union	p. 32
Was there a need for mixity in the non-Community parts of the EU?	p. 32
Cross-pillar second/third pillar combinations	p. 34
Cross-pillar EU/EC combinations	p. 38
EU/Member State combinations	p. 40
EU/EC/Member State combinations	p. 44
Restraints on Member States' External Competences and the Jurisdiction of the European Court of Justice	p. 46
Cross-pillar agreements: the effects on Member States	p. 46
The Jurisdiction of the Court of Justice	p. 47
EU Mixity after Lisbon	p. 49
Conclusion	p. 53
The Constitutional Framework	p. 55
Federalism and Foreign Affairs: Mixity as a (Inter) national Phenomenon	p. 57
Introduction: The Federal Principle and Foreign Affairs	p. 57
Federal States and Foreign Affairs: Comparative Constitutional Perspectives	p. 58
The 'Closed' Federation: The United States of America	p. 59
The 'Open' Federation: The German Federal State in Constitutional History	p. 65
Conclusion: Federal States, Foreign Affairs and (the absence of) Mixed Agreements	p. 70
The European Union and Foreign Affairs: Pure and Mixed Agreements	p. 72
The Scope of the European Union's Treaty Powers: The Doctrine of Parallelism	p. 74
The Scope of the Member States' Treaty Powers: Constitutional and Legislative Pre-emption	p. 77
Mixed Agreements and Foreign Affairs: Europe's Federal Constitutional Convention	p. 79
Conclusion: Mixed Agreements as a (Inter)national Phenomenon	p. 84
Mixity and Coherence in EU External Relations: the Significance of the 'Duty of Cooperation'	p. 87
Introduction	p. 87
The Constitutional Foundation of the Duty of Cooperation	p. 88
The Constraining Effects of the Duty of Cooperation	p. 92
A duty involving legal obligations	p. 93
Unconditional effects	p. 94
A duty involving specific procedural obligations	p. 97
The Differentiated Application of the Duty of Cooperation	p. 102
The duty of cooperation and interlinked exercise of Member States and Union competences	p. 103
The application of the duty of cooperation where Member States and Union exercise their respective competences independently	p. 106
Conclusion	p. 114
Interpretation of Mixed Agreements	p. 116
Introduction	p. 116
The Origin	p. 117
The Principle	p. 118
Jurisdiction to Interpret Mixed Agreements in the Context of Enforcement Proceedings	p. 123
The More Recent Twist	p. 129
Conclusion: Which Union Interest?	p. 135
Adoption of Positions under Mixed Agreements (Implementation)	p. 138
Introduction	p. 138
The General Legal Framework	p. 140
Acts and Instruments Governing the Adoption of Positions	p. 142
Circumstances in Which a Union Position Must be Adopted	p. 146
Matters within the Union's exclusive competence	p. 146
Matters within the Union's non-exclusive competence	p. 149
Union Law Obligations Governing the Exercise of Member State Competence	p. 154
Conclusions	p. 158
Disconnection Clauses in EU Law and Practice	p. 160
Introduction	p. 160
What is a Disconnection Clause and When is it Used?	p. 162
'Without prejudice' and 'non-affect' clauses	p. 164
The 'standard' disconnection clause	p. 168
The Legal Effect of the Disconnection Clause and the Autonomy of the Union Legal Order	p. 171
Disconnection Clauses and Mixed Agreements	p. 179
Disconnection Clauses and Exclusivity	p. 181
Conclusion	p. 185
Beware of the Trojan Horse: Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order	p. 187
Introduction to the Foundations of the Autonomy of the EU Legal Order	p. 187
Interconnecting with Public International Law Whilst Guarding Against the Trojan Horse	p. 190
International Dispute Settlement Mechanisms for Settling Disputes with Third Countries	p. 192
Allocation of powers between the EU and its Member States	p. 193
Essential character of powers of EU institutions	p. 194
Binding interpretation of rules of Union law referred to in the agreement	p. 196
Dispute Settlement Under (Mixed) Agreements Between Member States and/or EU Institutions	p. 199
Potential importance of mixity for Member States	p. 199
(Mixed) agreements concluded by the EU: the Haegeman track	p. 200
Implications for agreements concluded solely by Member States: the Open Skies track?	p. 202
Coincidence with international law: plea for a judicial disconnection clause	p. 203
Duty of Close Cooperation and Dispute Settlement: Member States and Third Countries	p. 205
Conclusion	p. 207
International Responsibility for EU Mixed Agreements	p. 208
Introduction	p. 208
The Case Law	p. 209
The European Court of Justice	p. 209
The European Court of Human Rights	p. 210
WTO Panels and the Appellate Body	p. 213
Excursus: the European Court of Human Rights and UN peace-keeping	p. 215
The Rules on Responsibility and Treaty Law	p. 217
The ILC Draft Articles on the Responsibility of International Organisations and the EU	p. 217
Some practice with respect to responsibility for EU mixed agreements	p. 224
What does all of this tell us about responsibility in the case of EU mixed agreements?	p. 226
Practice and Actors of Mixed Agreements	p. 229
Mixity in Practice: Some Problems and their (Real or Possible) Solution	p. 231
Introduction	p. 231
Treaty-making Process	p. 231
General legal framework for managing mixity	p. 231
The negotiation phase	p. 234
The conclusion phase	p. 238
Suspension of the Application and Implementation of a Mixed Agreement	p. 245
Conclusions	p. 247
Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its Member States	p. 249
Introduction	p. 249
The Evolution of Mixity	p. 250
The legal basis for 'new mixity'	p. 250
Inter-pillar practice since 2000	p. 251
Recent Practice on Agreements Concluded by the Union and its Member States	p. 253
Treaty making	p. 253
Application	p. 257
Enforcement	p. 262
Conclusion	p. 267
Mixed Agreements from the Perspective of the European Parliament	p. 269
Introduction	p. 269
The State of Play under the Treaty of Nice: an Insufficient Involvement by the Parliament During Negotiations but a Trend to Set Preconditions	p. 272
No specific provision in the Treaties: Article 300 EC as the general rule	p. 272
The Framework Agreement on Relations between the European Parliament and the Commission	p. 273
Recent trend to set preconditions when the assent procedured is required	p. 277
The Parliament may show its concern at the assent procedure	p. 280
New Perspectives with the Lisbon Treaty	p. 281
The Commission should remain, wherever possible, the negotiator of mixed agreements	p. 282
The enhanced role of the European Parliament	p. 284
Inter-parliamentary cooperation between the European Parliament and the national parliaments	p. 290
Conclusion	p. 292
Mixity in Practice-the View from the Netherlands	p. 295
Introduction	p. 295
Discussions at EU Level	p. 296
Internal Problems	p. 299
Practical Solutions	p. 301
National Approval of Agreements	p. 301
Conclusion	p. 302
Mixity in Practice-A Member State Practitioner's Perspective	p. 304
Introduction	p. 304
Negotiating Mandates	p. 304
The Conduct of the Negotiations and the Establishment of Agreed Positions When Negotiating Mixed Agreements	p. 309
Signature of Mixed Agreements and Provisional Application	p. 313
Conclusion of Agreements and Declarations of Competence	p. 315
Conclusion	p. 318
Mixity Seen from Outside the EC but Inside the Internal Market	p. 320
Introduction	p. 320
An Overview	p. 322
The EEA Agreement: Unproblematic Mixity?	p. 324
Was Article 24 TEU Worse Than Mixity?	p. 326
'Substantive Mixity' - the Real Problem for EFTA States?	p. 328
Mixity from the Outside: the Perspective of a Treaty Partner	p. 331
Introduction	p. 331
Conceptual and Legal Challenges Associated with Mixity	p. 333
The tension between mixity and standard treaty practice	p. 333
The ambiguity of EU 'declarations of competence'	p. 335
Troubling 'disconnection clauses'	p. 337
Practical Problems Associated with Mixity	p. 338
Negotiating with the EU and its Member States	p. 338
The participation of the EU and its Member States in international organisations	p. 340
Authentic languages of mixed agreements	p. 341
International responsibility of the EU and its Member States under mixed agreements	p. 342
The entry into force of mixed agreements	p. 345
Conclusion	p. 346
The Future of Mixed Agreements	p. 349
Mixity in the Era of the Treaty of Lisbon	p. 351
The New Treaty and Union Structure	p. 352
Exclusive Union Competence	p. 355
A priori exclusivity	p. 356
Supervening exclusivity through operation of the AETR and Opinion 1/76 principles	p. 360
Blurring the Boundary between Union Competences	p. 363
Conclusions	p. 365
The Future of Mixity	p. 367
Mixity is Here to Stay	p. 367
Learning to Live with Mixity	p. 371
Index	p. 375
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