International Treaty in EU PIL

1. International Treaty in EU PIL

2. International Treaty in EU Law • - tool for external relations • EU competence: exclusive or not • - treaties of EU: • Lugano • HCCH • binding force for Member States • - treaties concluded by Member States • before the accession to the EU • after: new directives

3. 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

4. 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.

5. 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

6. 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.

7. 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)

8. 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.

9. External competences of the EU • Special cases: • 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

10. 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

11. 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

12. 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.

13. 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?

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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.

20. 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.

21. 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.

22. 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.

23. 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. • 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 cross-border 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.

24. 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.