LLM 2010/11 EU Environmental Law I

1. LLM 2010/11EU Environmental Law I The EU on the International Stage

2. EU and international public law • European Union has legal status to sign and ratify treaties • International public law allows for treaties to be signed and ratified by EU : “.. be open for signature by all States and by regional economic integration organizations” • Unlike Federal systems, EU does not have exclusive external relations powers

3. TREATY PROVISIONS TEU Art 5(2) • “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States”.

4. TREATY PROVISIONS - INTERNATIONAL AGREEMENTS TFEU Art 216 • The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provides or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Unions policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding act of the Union or is likely to affect common rules or alter their scope. • 2. Agreements concluded by the Union are binding on the institutions of the Union and on its Member States.

5. TFEU gives express powers to Union in environmental field Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations (Art 191(4))

6. Exclusive powers • Express under Treaty: - common commercial policy (external trade) - conservation of marine biological resources under commons fisheries policies (Art 3(1) TFEU) • Implied: The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope. (Art 3(2))

7. Mixed agreements • Environmental agreements must always be mixed agreements because Art 191 Treaty allows Member States to introduce stricter standards • See ECJ Opinion 2/91 [1993] ECR-I-1061 (internaltional labour organization)

8. Recent Conflicts on whether treaty is common commercial or environment • Catagena Protocol on Biosafety - Opinion 2/00 2001 ECR I-9713 (environmental) • US Energy Star Agreement C-281/01 [2002] ECR-I 12049 (trade) • Rotterdam Convention on trade in hazardous chemicals and pesticides C-94/03 [2006] ECR I-I (dual basis - “two indissociably linked components”

9. PROCEDURE (TFEU Art 218) • Commission proposes to Council and Council authorizes opening of negotiations by Decision • Decision should explain EU competence • Commission negotiates (Council may issue it with directives or set up special consultation committee) • Council on proposal from Commission makes Decision to sign • Council adopts Decision to conclude agreement only after agreement of European Parliament (in cases where ordinary legislative procedure applies, eg environment) : eg 002/358/EC: Council Decision of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol

10. European Council Conclusions Oct 2009 The European Council endorses the conclusions adopted by the Council on 21 October 2009 (14790/09), which together with these European Council conclusions and the attached guidelines give the European Union a strong negotiating position. It will allow the European Union to play a constructive role during the final phase of the negotiating process, in particular on key issues such as financing, technology transfer, adaptation, mitigation and good governance. The European Council invites the Presidency to take the necessary steps to maintain a strong negotiating position throughout the process and will review the situation at its meeting in December in order to take the necessary decisions in the light of the early stages of the Copenhagen conference.

11. During Negotiations in Mixed Agreement • Commission in conjunction with Council (Presidency leads) • Member States individually but normally negotiate common position • Within own competence Member States still under duty of cooperation - ECJ case-law strengthening - close association during negotiations, duty to inform etc. - C-25/94 [1996] ECR-I 1469

12. Conflicts still arise - International Agreement on Mercury 7-10 June 2010 Stockholm • 16 July 2009 Commission submits to Council recommendation on negotiations • 12 May 2010 All Member States approved position fro Draft Decision • Commission and President of Council to negotiate jointly - on some issues Commission sole negotiator, on others leads with President as member, and on others President leads

13. Council Commission conflict • 12 May 2010 Commission withdraw Recommendation – wants to be sole negotiator • 4 June 2010 Council urge new Recommendation from Commission under 218(3) TFEU agree to adopt Procedure • Member States designate to President to represent their competences • Invite Commission to work in coordinated manner

14. Commission official said the Council conclusions were “helpful guidance” but did “not replace a Council decision on a mandate to negotiate”, meaning that the EU would participate “but not be in a position to negotiate” in Stockholm.