International Treaty in EU PIL
International Treaty in EU Law
• - tool for external relations
• EU competence: exclusive or not
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- treaties of EU:
Lugano
HCCH
binding force for Member States
• - treaties concluded by Member States
• before the accession to the EU
• after: new directives
International Treaty in EU Law
• International agreements constitute a
category of legal act within the European
Union (EU)
• concluded by the EU acting alone or
• jointly with Member States
EU – Subject of International Law
• With the entry into force of the Treaty of Lisbon,
the European Union (EU) acquired legal
personality.
• It is therefore a subject of international law
• capable of negotiating and concluding
international agreements on its own behalf.
• Legal effects in the internal law of the EU and
the Member States.
EU as subject of international law
• EU as a subject of international law
(agreements = international law, not EU law!):
• international law: depends on functions of the
EU in international relations - is the legal
personality necessary?
• If so, limited
• EU law: depends on the will of the Member
States - Art. 47 TEU ("The Union shall have legal
personality. ")
• Capacity to conclude international treaties
Treaty in EU Law
• Definition
• International agreements are the result of a
consensus
• between the EU on the one hand and
• a third country or third-party organisation on the
other hand.
• These agreements create rights and
obligations for
• - European institutions and
• - Member States.
• They become part of the European legal order.
Terminology
• Treaties: Foundation treaties (TEU,
TFEU)
• Conventions: treaties concluded between
Member States only. Formerly the whole
area of PIL.
• Agreements: "external" treaties
concluded by the EU with third subjects (or
with a Member State)
External competences of the EU
• The external competences of the EU are defined in
Article 216 TFEU.
• The EU may conclude international agreements:
– in the cases provided for by the founding Treaties;
– where provided for in a legally binding act;
– where the conclusion of an agreement is necessary in order to
achieve one of the objectives of the EU, even in the absence
of internal European legislation;
– where the conclusion of the agreement is likely to affect
common rules adopted by the EU in internal law. Thus, where
the EU has adopted common rules for the implementation of
a policy, Member States are no longer entitled to enter into
obligations with third countries affecting those rules.
External competences of the EU
• Special cases:
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Common Trade Policy (207)
Development Cooperation (209)
Association Agreements (217) - different types of agreements
and others - do not concern PIL
• Internal competences for the conclusion of
agreements
• Art. 218 TFEU - Council (= governments of Member
States) - qualified majority, European Parliament
consulted
• Exclusive: see Lugano
Binding effect
• Effects of international agreements in
the internal EU law:
• Binding effect to EU institutions: when
adopting the secondary law
• Binding effect to Member States: Member
States bound by the agreement, even if
not party to it
– implications in international law
Exclusive competence and
shared competence
• The division of competences between the EU and Member States is
also expressed at international level:
• - exclusive competence or
• - competence shared with Member States.
• Where it has exclusive competence, the EU alone has the power
to negotiate and conclude the agreement. Article 3 TFEU specifies
the areas in which the EU has exclusive competence
• Where its competence is shared with Member States, the
agreement is concluded both by the EU and by the Member
States. It is therefore a mixed agreement to which Member States
must give their consent. The areas in which competences are
shared are defined in Article 4 TFEU
Lugano Convention
• EU - Norway, Iceland, Switzerland, Liechtenstein (= extended
Brussels I)
• Opinion 1/03 - Opinion pursuant to Article 300(6) TEC = 218(11)
TFEU
• (Competence of the Community to conclude the new Lugano
Convention on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters)
• The opinion of the Court pursuant to Art. 218 (11) TFEU may be
obtained on questions concerning the division of competence to
conclude a given agreement with non-member countries.
Lugano Convention
• Community (Union) enjoys only conferred powers.
• Any competence must have its basis in conclusions
drawn from a specific analysis of the relationship
between the agreement envisaged and the
Community law in force
• examine whether conclusion of such an agreement is
capable of affecting the Community rules
• Establishing relationship between the agreement and the
Community (Union) law - do they coincide?
Lugano Convention
• In short: it is essential to ensure a uniform
and consistent application of the
Community rules and
• the proper functioning of the system
which they establish in order to preserve
the full effectiveness of Community law.
Lugano Convention
• Prior to the conclusion of the agreement
envisaged: to establish whether it is
capable of affecting the Community
rules.
• ‘Disconnection clause’ providing that the
agreement does not affect the application
by the Member States of the relevant
provisions of Community law, does not
constitute a guarantee.
Lugano Convention
• In international agreements with non-member
countries rules of conflict of jurisdiction
necessarily establish criteria of jurisdiction
for courts not only in non-member countries
but also in the Member States = potential
conflict
• Rules contained in the agreement cover matters
governed by Regulation No 44/2001 on
jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters.
Lugano Convention
• That regulation: unified system of rules which
apply not only to relations between different
Member States, but also to relations between
a Member State and a non-member country.
• Therefore, given the unified and coherent
system of rules on jurisdiction inside the EU,
any international agreement also
establishing a unified system of rules on
conflict of jurisdiction is capable of affecting
its rules of jurisdiction.
Lugano Convention
• The agreement envisaged may have an
effect on the Community rules.
• Consequently, the conclusion of the new
Lugano Convention falls within the
Community’s exclusive competence
• = Member States are not its parties
EU Accession to the Hague
Conference
• Since the entry into force of the Treaty of Amsterdam
(1999), the Community has competence to adopt
measures in the field of judicial cooperation in civil matters
having cross-border implications insofar as necessary for
the proper functioning of the internal market.
• The Community adopted a number of instruments, many
of which coincide, partially or fully, with the areas of work
of the HCCH.
• It is essential that the Community (Union)
– be granted a status that corresponds to its new role as a major
international player in the field of civil judicial cooperation and
that it
– be able to exercise its external competence by participating as a
full member in the negotiations of conventions by the HCCH in
areas of its competence.
EU Accession to the Hague
Conference
• The Diplomatic Conference of the HCCH
has adopted the amendments to the Statute
of the HCCH necessary to allow the
accession of a Regional Economic
Integration Organisation
• Article 2A of the revised Statute entitles the
Community, as a Regional Economic
Integration Organisation, to become a
Member of the HCCH.
EU Accession to the Hague
Conference
• Result:
• The Community has acceded to the Hague Conference
on Private International Law (HCCH) by means of the
declaration of acceptance of the Statute of the HCCH
(Statute)
• Instrument of accession to the Hague Conference on
Private International Law
• The European Community formally and without
reservation accepts the obligations arising from its
membership of the Hague Conference on Private
International Law, as set out in the Statute, and formally
undertakes to fulfil the obligations upon it at the time of its
accession.
EU Accession to the Hague
Conference
• Declaration of Competence of the European Community
specifying the matters in respect of which competence has been
transferred to it by its Member States
• The European Community has internal competence to adopt
measures in the field of judicial cooperation in civil matters having
cross-border implications insofar as necessary for the proper
functioning of the internal market. Such measures include:
• (a) improving and simplifying the system for cross-border service of
judicial and extrajudicial documents; cooperation in the taking of
evidence; the recognition and enforcement of decisions in civil and
commercial cases;
• (b) promoting the compatibility of the rules applicable in the Member
States concerning the conflict of laws and of jurisdiction;
• (c) eliminating obstacles to the good functioning of civil
proceedings, if necessary by promoting the compatibility of the rules
on civil procedure applicable in the Member States.
EU Accession to the Hague
Conference
• The European Community has competence in other fields which
can be subject to conventions of the HCCH, as in the field of the
internal market or consumer protection.
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The European Community has made use of its competence by adopting a number
of instruments, such as:
- Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings,
- Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member
States of judicial and extrajudicial documents in civil or commercial matters,
- Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction, recognition
and enforcement in civil and commercial matters,
- Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the
courts of the Member States in the taking of evidence in civil or commercial matters,
- Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in crossborder disputes by establishing minimum common rules relating to legal aid for such
disputes,
- Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgements in matrimonial matters and the
matters of parental responsibility, repealing Regulation (EC) No 1347/2000, and
- Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21
April 2004 creating a European Enforcement Order for uncontested claims.
Statute of the Hague Conference
on Private International Law
• Article 2A
• 1. The Member States may decide to admit also as a Member any
Regional Economic Integration Organisation.
• 2. To be eligible to apply for membership of the Conference, a
Regional Economic Integration Organisation must be one constituted
solely by sovereign States to which its Member States have
transferred competence over a range of matters within the purview
of the Conference, including the authority to make decisions
binding on its Member States in respect of those matters.
• 7. The Member Organisation shall exercise membership rights on an
alternative basis with its Member States that are Members of the
Conference, in the areas of their respective competences.
• 8. The Member Organisation may exercise on matters within its
competence, in any meetings of the Conference in which it is entitled
to participate, a number of votes equal to the number of its Member
States. Whenever the Member Organisation exercises its right to vote
its Member States shall not exercise theirs, and conversely.