International conventions and agreements of the EU
SUMMARY OF:
Article 216 of the Treaty on the Functioning of the European Union
Article 207 of the Treaty on the Functioning of the European Union
They are treaties under public international law and generate rights and obligations for the contracting parties as negotiated between them.
Unlike unilateral acts, conventions and agreements are not the result of a legislative procedure or the sole will of an institution.
International agreements (conventions, treaties)
International agreements are concluded between the EU on the one hand, and another entity of public international law, i.e. a state or an international organisation, on the other. Article 216 of the Treaty on the Functioning of the EU (TFEU) cites the cases in which the EU is authorised to conclude such agreements. After having been negotiated and signed, and according to the subject matter concerned, they may require ratification by an act of secondary legislation.
Moreover, international agreements with non-EU countries or with international organisations are also an integral part of EU law. These agreements are separate from primary law and secondary legislation and form a sui generis category. According to some judgments of the CJEU, sometimes they can have direct effect and their legal force is superior to secondary legislation, which must therefore comply with them.
In addition, Article 207 of the TFEU governs the EU’s trade policy — a key external competence of the EU and a central element of its relations with the rest of the world.
Examples of international agreements:
Nagoya Protocol: access to genetic resources and sharing of benefits from their utilisation;
EU trade agreement with Colombia, Peru and Ecuador.
If the subject matter of an agreement does not fall under the exclusive competence of the EU, EU countries also have to sign the agreement. These are known as mixed agreements. This means that, in addition to the EU itself, EU countries become contracting parties towards the non-EU contracting parties. Mixed agreements may also require that an internal EU act is adopted to share out the obligations between the EU countries and the EU.
DOCUMENTS
Consolidated version of the Treaty on the Functioning of the European Union — Part Five: The Union’s external action — Title V: International agreements — Article 216 (OJ C 202, 7.6.2016, p. 144)
Consolidated version of the Treaty on the Functioning of the European Union — Part Five: The Union’s external action — Title II: Common commercial policy — Article 207 (ex Article 133 TEC) (OJ C 202, 7.6.2016, pp. 140-141)
International agreements: EU adoption procedures
Article 218 TFEU — EU adoption procedures for international agreements
Article 218 of the Treaty on the Functioning of the European Union (TFEU) lays down the procedures and powers of the EU institutions regarding the negotiation and adoption of agreements between the EU and non-EU countries or international organisations.
KEY POINTS
The article sets out the respective powers of the Council, the European Commission or the High Representative of the Union for Foreign Affairs and Security Policy, the European Parliament and the Court of Justice of the European Union in the process.
In general, the Council has the power to open negotiations, adopt negotiating directives and sign and conclude agreements.
The Commission (or the High Representative of the Union for Foreign Affairs and Security Policy for common foreign and security policy matters) submits recommendations to the Council to open negotiations for an agreement.
The consent of the European Parliament is required before the Council can conclude certain types of agreements, including:
association agreements;
agreements on EU accession to the European Convention on Human Rights (ECHR);
agreements with important budgetary implications for the EU;
agreements establishing a specific institutional framework (e.g. when the agreements create a joint committee with decision-making powers);
agreements covering fields to which either the ordinary procedure or the special legislative procedure, where consent by the European Parliament is required, applies.
In all other types of agreements, the European Parliament is required to be consulted.
At the request of an EU country, the Council, the Commission or the Parliament, the Court of Justice may provide an opinion on whether an envisaged agreement is compatible with the EU treaties.
The Council may act on the basis of a qualified majority of its members except in areas where unanimity is normally required including, for example, for agreements regarding the accession of the EU to the ECHR.
ACT
Consolidated version of the Treaty on the Functioning of the European Union Part five — External action by the Union — Title V — International agreements Article 218 (ex Article 300 TEC)
International agreements and the EU’s external competences
SUMMARY OF:
Article 3 of the Treaty of the Functioning of the European Union (TFEU)
Article 4 TFEU
Article 207 TFEU
Article 216 TFEU
They establish the EU’s legal powers to negotiate and conclude international agreements, and its competence, whether exclusive or shared, to enter into such agreements.
International agreements (conventions, treaties)
International agreements with non-EU countries or with international organisations are an integral part of EU law. These agreements are separate from primary law and secondary legislation and form a sui generis category. According to some judgments of the CJEU, they can have direct effect and their legal force is superior to secondary legislation, which must therefore comply with them.
They are treaties under public international law and generate rights and obligations for the contracting parties.
Unlike unilateral acts, conventions and agreements are not the result of a legislative procedure or the sole will of an institution.
Article 216 TFEU cites the cases in which the EU is authorised to conclude such agreements.
After having been negotiated and signed, and depending on the subject matter concerned, they may require ratification by an act of secondary legislation.
International agreements must be applied throughout the EU. They have a legal force superior to unilateral secondary acts, which must therefore comply with them.
In addition, Article 207 TFEU governs the EU’s trade policy — a key external competence of the EU and a central element of its relations with the rest of the world.
EU external competences
The EU has legal personality and is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf, i.e. it has competences (or powers) in this field conferred on it by the treaties.
If the subject matter of an agreement does not fall under the exclusive competence of the EU, EU countries also have to sign the agreement. These are known as ‘mixed agreements’.
Exclusive competence and shared competence
The distribution of competences between the EU and EU countries also applies at international level. Where the EU negotiates and concludes an international agreement, it has either exclusive competence or competence which is shared with EU countries.
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 to conclude international agreements, including trade agreements.
Where its competence is shared with EU countries, the agreement is concluded both by the EU and by EU countries. It is therefore a mixed agreement to which EU countries must give their consent. Mixed agreements may also require that an internal EU act is adopted to share out the obligations between the EU countries and the EU. Article 4 TFEU sets out which competences are shared.
DOCUMENTS
Consolidated version of the Treaty on the Functioning of the European Union — Part One — Principles — Title I — Categories and areas of Union competence — Article 3 (OJ C 202, 7.6.2016, p. 51)
Consolidated version of the Treaty on the Functioning of the European Union — Part One — Principles — Title I — Categories and areas of Union competence — Article 4 (OJ C 202, 7.6.2016, pp. 51-52)
Consolidated version of the Treaty on the Functioning of the European Union — Part Five — The Union’s external action — Title II — Common commercial policy — Article 207 (ex Article 133 TEC) (OJ C 202, 7.6.2016, pp. 140-141)
Consolidated version of the Treaty on the Functioning of the European Union — Part Five — The Union’s external action — Title V — International agreements — Article 216 (OJ C 202, 7.6.2016, p. 144)