Prof. Pieter Jan KUIJPER
Connected or Disconnected?
The EU and International Law
Lecture 3: The EU and the Law of Treaties
The EU and the Law of Treaties
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Pure EC/EU (new) Agreements.
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“Old EU” Agreements
Mixed Agreements
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General
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Bilateral
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Multilateral
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Disconnection clauses
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Future of Mixed Agreements
The Courts and Treaty Law
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Community/Union Agreements
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In principle familiar/acceptable to third States
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Reparations for Injuries Case, ICJ 1949.
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ILC Discussions on the 1986 Vienna Convention.
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Art. 216 (2) TFEU and Art. 36bis of ILC draft for 1986
Convention.
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Who (EU or MS) is bound with respect to whom?
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Internal “constitutional position”.
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External “international law position”.
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Difference between the two.
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“Old EU Agreements”
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No legal personality for “old EU”
Treaty-making power: old Art. 25 TEU
De facto: two treaties – two international
persons.
Unproblematic in CFSP: technical agreements
on police operations and security exchange.
Problematic in Third Pillar: touched citizens’
rights – required national Parliaments’ approval.
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Highly contested agreements. PNR etc.
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Normal Treaty Techniques.
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Normal Treaty Techniques available (Art 218):
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Negotiation: Double-hatted or double-headed?
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Signature and Provisional Application.
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Conclusion (influence EP!)
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Simplified procedure for small modifications
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Suspension of application of the agreement
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Termination of treaties (everywhere a problem!)
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Position in a treaty body taking acts having legal
effects (Great problems during Doha Round neg.)
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Special EU ‘Abnormalities’
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Territorial scope of EU Treaties.
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Territory covered by the EU Treaties.
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Exceptions: only customs territory etc
Opt-outs and Opt-ins. UK, Ireland and Dk.
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Which opt-outs are possible?
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When is opting in possible in external instruments?
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When does UK, Eire or Dk have to decide?
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Mixed Agreements - General
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Not in TEC, TEU or TFEU, but in Euratom
Treaty (Art. 102).
Why resort to “mixity” in EC/EU domain?
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For reasons of necessity:real problems of competence
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For reasons of expediency: avoid an internal dispute
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For political reasons: wish of the MS.
How do third states look at mixed agreements?
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Against the billiard ball approach to internat’l relations
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Depends on bilateral or multilateral character
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Mixed Agreements - Bilateral
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Bilateral Character is clear from text
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EU/EC and its MS of the one part and country X of the
other part.
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Complementary character of MS and EU powers clear
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Nevertheless, Third States do not invariably see it that
way – they are not used to an international personality
externalizing its structural problems.
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Parallel with “federal state clause” in treaties?
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Mixed Agreements - Bilateral 2
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Problems discerned by third States
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Problems related to the negotiation:
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Choice for mixity made late
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Who leads the negotiation?
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Authentic languages
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Entry into force – ratification
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And to be discussed later:
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Speaking, voting etc. in treaty bodies
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International responsibility
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Mixed Agreements - Multilateral
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Mixity often “hidden” in multilateral treaties.
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Third States don’t see clearly the “EU and its MS of
the one part” in negotiations, and not at all afterwards.
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Third States believe this is a normal multilateral
agreement, where treaty relations exist normally
between Member States.
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That this is not so, can be made clear in two ways:
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By declarations of competence
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By disconnection clauses
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Declarations of Competence
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The problems of declarations of competence
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Externalization of “federal problems”. ECJ changes
position over time.
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Opinion 1/78.
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MOX Plant.
Result of internal compromises: unclear content.
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General terms about evolutionary character
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Reference to Treaty articles + EU legislation
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Virtually never adjusted to evolutions in
external powers.
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Disconnection Clauses.
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A short history of disconnection clauses.
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Initially in treaties where the EC/EU was not a party.
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Later also in treaties where EC/EU was a party.
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Totally different intention and effect.
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New version of the disconnection clause.
Do disconnection clauses go too far?
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They are agreed by all parties to the Treaty.
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The new version has a limited, but useful function
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They show that the EU + MS are one “group” and
externalize “federal problems.” Declarations better?
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Examples of Disconnection Clauses
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
OLD VERSION (since 1970s)
In their mutual relations, Parties which are Members of the European
Economic Community shall apply Community rules and shall therefore not
apply the rules arising from this Convention except in so far as there is no
Community rule governing the particular subject concerned.
NEW VERSION (2005)
Parties which are members of the European Union shall, in their mutual
relations apply [Community and] European Union rules in so far as there are
[....] European Union rules governing the particular subject concerned and
applicable in the specific case, without prejudice to the object and purpose of
the present Convention and without prejudice to its full application with other
Parties.
Accompanied by a special declaration.
Mixed Agreements after Lisbon
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Insofar as “political clauses” caused mixity, it
could disappear: trans-treaty Union Agreements
would take their place.
Insofar as remaining MS powers in the TFEUcontext cause mixity, it cannot disappear.
Will the same dynamics that caused “political
mixity”, bring about an increased CFSP
influence over the TFEU-side of things?
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The Union Courts and the Law of
Treaties
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Courts have a long tradition of having recourse
to the law of treaties (Vienna Convention 1969)
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Basis is Art. 3(b) Vienna Convention
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Case C-386/08 Brita
Recourse to rules of interpretation (Art 31 ff)
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Agreements concluded by the Union ( no direct effect
– e.g. Case C-308/06 Intertanko)
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The Union Courts and the Law of
Treaties 2
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Recourse to the law of treaties (Vienna
Convention 1969) cont.
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Union Treaties themselves
 Recourse to related documents (Cases T187/99 and C-321/01P Agrana Zucker)
 Recourse to practice (Cases C-327/91 Fr. v.
Comm. and C-91/05 –Ecowas/SALW)
Good faith
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In treaty interpretation: Case C-268/99 Jany et al.
In treaty performance: AG Colomer in C-431/05
Merck-Genericos.
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