EU: Bilateral Agreements of Member States

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EU Bilateral Agreements of Member States

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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 Unions 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.

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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

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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

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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.

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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

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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.

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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)

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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

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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

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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.?

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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

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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.

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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).

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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.

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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.