EU: Bilateral Agreements of
Member States
Formerly concluded international
agreements of Member States with third
countries
• Article 351 TFEU
• The rights and obligations arising from agreements
concluded 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.
• To the extent that such agreements are not compatible
with the Treaties, the Member State or States
concerned shall take all appropriate steps to
eliminate the incompatibilities established.
Formerly concluded international
agreements of Member States with third
countries - 2
• In applying the agreements referred to in the
first paragraph, Member States shall take into
account the fact that the advantages accorded
under the Treaties by each Member State form
an integral part of the establishment of the
Union and are thereby inseparably linked with
the creation of common institutions, the
conferring of powers upon them and the granting
of the same advantages by all the other Member
States.
Bilateral Agreements of Member States
Regulation No 662/2009
• Regulation establishing a procedure for the
negotiation and conclusion of agreements between
Member States and third countries on particular
matters concerning the law applicable to contractual and
non-contractual obligations
• Judicial cooperation in civil matters between Member
States and third countries has traditionally been
governed by agreements between Member States and
third countries
• often reflecting special ties between a Member State
and a third country and are intended to provide an
adequate legal framework to meet specific needs of
the parties concerned.
Bilateral Agreements of Member
States – Regulation 662/09
• Former agreements:
• Member States should take all appropriate
steps to eliminate any incompatibilities
between the Community (Union) acquis
and international agreements
• This may involve the need for
the re-negotiation of such agreements.
Bilateral Agreements of Member
States – Regulation 662/09
• Conclusion of new agreements with third countries
relating to areas of civil justice:
• In its Opinion 1/03 relating to the conclusion of the new
Lugano Convention, the Court of Justice: exclusive EU
competence to conclude an international agreement like
the Lugano Convention with third countries on matters
affecting the rules laid down in EU secondary legislation.
• Consequently: It is for the Union to conclude
agreements between the EU and a third country on
matters falling within the exclusive competence of the
Union.
Bilateral Agreements of Member
States – Regulation 662/09
• A coherent and transparent procedure should be
established to authorise a Member State to amend an
existing agreement or to negotiate and conclude a
new agreement, in particular where the Union itself has
not indicated its intention to exercise its external
competence.
• It should be regarded as an exceptional measure and
should be limited in scope and in time.
• Member State needs an authorisation to open or
continue formal negotiations on an agreement as well
as to conclude an agreement.
Bilateral Agreements of Member
States – Regulation 662/09
• When authorising the opening of formal
negotiations, the Commission should be
able, if necessary, to propose
negotiating guidelines or request the
inclusion of particular clauses in the
envisaged agreement.
Bilateral Agreements of Member
States – Regulation 662/09
• Where the Commission intends not to
authorise the opening of formal negotiations or
the conclusion of a negotiated agreement, it
should, before giving its reasoned decision,
give an opinion to the Member State concerned.
In the case of refusal to authorise the conclusion
of a negotiated agreement the opinion should
also be submitted to the European Parliament
and to the Council.
Bilateral Agreements of Member
States – Regulation 662/09
• In order to ensure that the negotiated agreement does
not constitute an obstacle to the implementation of the
Union’s external policy on judicial cooperation in civil
and commercial matters,
• the agreement should provide either for its full or partial
denunciation in the event of the conclusion of a
subsequent agreement between the Union on the
one hand, and the same third country, on the other
hand, on the same subject matter, or for a direct
replacement of the relevant provisions of the
agreement by the provisions of such subsequent
agreement.
Bilateral Agreements of Member
States – Regulation 662/09
• The United Kingdom and Ireland have
given notice of their wish to take part in
the adoption and application of this
Regulation.
• Denmark is not taking part in the adoption
of this Regulation and is not bound by it
or subject to its application
Hague Conventions and EU
Exclusive Competence
• Some international agreements fall into
the the exclusive competence of the
Union
• Different situations: Member States may
become or remain parties of international
agreements falling within exclusive Union
competence
Hague Conventions and EU
Exclusive Competence
• Reasons:
• 1. EU is excluded from participation
• 2. It is regarded as being in the Union
interest for the Member States to
participate
• 3. Exclusive competence has arisen after
the conclusion of an agreement by the
M.S.
Hague Conventions and EU
Exclusive Competence
• The ECJ has taken the view that
• Member States party to the agreement are
acting on behalf of the Union, and in its
interests
• The international agreement is not formally
an Union agreement
• International identity of the Union may be
represented by Member States
Hague Conventions and EU
Exclusive Competence
• The Member States, acting in the field of
exclusive Union competence and as
trustees of the common, or Union,
interests are subject to the supervision of
the Commission.
• In fields within exclusive Union
competence the Member States may act
only with Union authorisation.
Hague Conventions and EU
Exclusive Competence
• Example:
• Member States are to make a Declaration at the
time of ratification or accession that as between
the EU Member States, recognition and
enforcement of judgments are covered by EU
rules.
• (the 2002 Council decision authorising the
Member States, in the interest of the
Community, to sign the 1996 Hague Convention
on Parental Responsibility)
Hague Conventions and EU
Exclusive Competence
• Where authorisation is given to a M.S. on
an individual basis:
• Distinction needs to be made between
those cases where
– the M.S. acts on behalf of the Union
– the M.S. acts on its own account, albeit under
Union authorisation
Hague Conventions and EU
Exclusive Competence
• Special case:
• Agreement concluded by one Member
State binding on the Community (Union):
• Delegation to Italy of the power to
conclude agreements on the use of the
Euro with San Marino and Vatican City
(the Holy See) – concluded by one M.S.,
but binding the Union
Hague Conventions and EU
Exclusive Competence
• Community (Union) law obligations arising
for the M.S.
• IMPLICATIONS:
– Union law level
– International law level
– National constitutional law level
• Competence to implement the agreement
will lie with the Union or the M.S.?
Hague Conventions and EU
Exclusive Competence
• Council Decision (2008/431/EC) authorising
certain Member States to ratify, or accede to,
in the interest of the European Community,
the 1996 Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and
Cooperation in respect of Parental
Responsibility and Measures for the
Protection of Children and authorising certain
Member States to make a declaration on the
application of the relevant internal rules of
Community law
Hague Conventions and EU
Exclusive Competence
• The Community is working towards the
establishment of a common judicial area
based on the principle of mutual
recognition of judicial decisions.
• Council Decision 2003/93/EC of 19
December 2002 authorised the Member
States to sign the Convention in the
interest of the Community.
Hague Conventions and EU
Exclusive Competence
• Certain Articles of the Convention affect
secondary Community legislation on
jurisdiction and recognition and enforcement of
judgments, in particular Council Regulation (EC)
No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and the
matters of parental responsibility (Brussels II).
Hague Conventions and EU
Exclusive Competence
• The Member States retain their
competence in the areas covered by the
Convention which do not affect
Community law.
• The Community (Union) and the Member
States thus share competence to conclude
the Convention.
Hague Conventions and EU
Exclusive Competence
• Pursuant to the Convention, only sovereign
States may be party to it. For that reason, the
Community (Union) may not ratify, or accede
to, the Convention.
• The Council should therefore authorise the
Member States, by way of exception, to ratify,
or accede to, the Convention in the interest of
the Community (Union), under the conditions
set out in this Decision.