User:Kaihsu/EUlawB5

Constitutional and institutional law of the European Union.

Section B: Sources of European Union law.

Chapter 5: Agreement with third countries.

Notes by Kaihsu Tai, 2010-04-13.

International agreements as a source of EU law
‘Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States’: Article 216(2) TFEU. An act by an association council established by an association agreement with third countries constitute ‘an integral part of the Community legal system’: Greece v Commission 30/88.

‘A provision in an agreement concluded by the EU with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure’: Demirel 12/86. It is immaterial whether the agreement has direct effect in the non-Member State: Kupferberg 104/81.

Provisions in mixed agreements, where EU and the Member States act together, are likewise directly applicable: Bresciani 87/75. However, provisions falling within the exclusive compentence of the Member States (for example, in a field in respect of which the Community has not yet legislated) do not form part of the EU legal system; direct effect is then a matter of national law: Dior v Tuk Consultancy 300/98.

EU is obliged not to impede the fulfilment of by a Member State under an agreement entered into before the Member State’s accession to the EU; but such an agreement does not bind the EU: Article 351 TFEU; Attorney General v Burgoa 812/79.

‘[T]he review of lawfulness [...] to be ensured by the Community judicature applies to the Community act intended to give effect to the international agreement at issue, and not to the latter as such’: Kadi v Council and Commission C-402/05 P para 286.

WTO (ex GATT) agreements
GATT provisions bind the EU: International Fruit Company 21/72. However, an EU measure may be challenged on this ground in a national court only if the international agreement is directly effective (which is not the case for GATT/WTO agreements) or when the measure is meant to implement the agreement: Van Parys C-377/02. This limitation also applies to challenges in the ECJ: Germany v Council (Bananas) C-280/93. Details in the paragraph below.

The flexibility of GATT provisions ‘show that the GATT rules are not unconditional and that an obligation to recognize them as rules of international law which are directly applicable in the domestic legal systems of the contracting parties cannot be based on the spirit, general scheme or terms of GATT. In the absence of such an obligation following from GATT itself, it is only if the Community intended to implement a particular obligation entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of GATT, that the Court can review the lawfulness of the Community act in question from the point of view of the GATT rules’: Germany v Council (Bananas) C-280/93. This also applies to the WTO agreements, as ‘To accept that the role of ensuring that Community law complies with those rules devolves directly on the Community judicature would deprive the legislative or executive organs of the Community of the scope for manoeuvre enjoyed by their counterparts in the Community’s trading partners’: Portugal v Council C-149/96.

The EU has ‘replaced the Member States’ in GATT commitments: Nederlandse Spoorwegen 38/75. The EU has exclusive competence to conclude WTO agreements affecting trade in goods, but competence is shared by EU and the Member States when the agreements affect trades in services and intellectual property: Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of intellectual property. Such exclusive competence to conclude external agreements in the EU (in contradistinction to the Member States) does not extend by analogy to the allocation of powers between EU institutions; the Commission negotiates, but the Council concludes any agreement: France v Commission C-327/91.