The EU’s External Competence

The EU has legal personality (Art 47 TEU). It thus has the capacity to enter into agreements with States and international organisations, provided that they accept it as a contracting party. This possibility has been much used by the EU, which is party to more than 1,000 international agreements.10⁴ A significant number of these concern, directly or indirectly, environmental protection. Indeed, ‘promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change’ is one of the objectives to be pursued by the EU’s policy on the environment (Art 191 (1) TFEU), and participating in the drafting and subsequent development of international treaties are essential parts of this endeavour. Most multilateral environmental agreements (MEAs) are open to participation by ‘regional economic integration organisations’ such as the EU.

However, the EU’s ability to enter into international agreements is not only a matter of its relation to third (ie non-EU) countries, but to a large extent also about internal competences. Historically, the external competence of what is now the EU has largely been developed in case law. The Court of Justice has granted the Union extensive competence to enter into international agreements and held that authority to enter into international commitments may not only follow from express attributions in the Treaties but also flow implicitly from their provisions.105 Wherever the EU institutions have been granted powers in the internal law of the EU for attaining a specific objective, the Union has authority to enter into international commitments necessary for the attainment of that objective.™⁶

The Treaty of Lisbon has to some extent simplified and codified the legal situ- ation.10⁷ Article 216 TFEU now makes clear that

[t]he Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is

юз Case C-94/03 Commission v Council (n 68) and C-178/03 Commission v Parliament and Council (n 68), respectively. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam, 10 September 1998) 2244 UNTS 337.

• 104 р g Jacobs, ‘Direct Effect and Interpretation of International Agreements in the Recent Case Law of the European Court of Justice’ in A Dashwood and M Maresceau (eds) Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge University Press, 2008) 14.
• 105 See, eg, Joined cases 3, 4, and 6/76 Cornelis Kramer ECLI:EU:C:1976:114, para 19.
• 1°⁶ Opinion 1/76 of 26 April 1977 ECLI:EU:C:1977:63, para 3.
• 107 See further M Cremona ‘Defining Competence in EU External Relations: Lessons from the Constitutional Treaty’ in A Dashwood and M Maresceau (eds) Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge University Press, 2008) 34 et seq.

necessary in order to achieve, within the framework of the Union’s policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

It is hence an extensive competence, the outer limits of which are not always easy to discern. In some policy areas, including environmental policy, there has for some time existed an explicit competence for the Union to enter into international agreements. According to what is now Article 191(4) TFEU, the Union and the Member States shall, within their respective spheres of competence, cooperate with third countries and with competent international organisations. The arrangements for Union cooperation may be the subject of agreements between it and the third parties concerned.

The internal EU procedure for negotiating and entering into international agreements is set out in Article 218 TFEU.^{[1] [2] [3]} Except for agreements relating exclusively or principally to the common foreign and security policy, it is the Council that authorises the opening of negotiations, adopts negotiating directives, authorises the signing of agreements, and concludes them. It may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted. 109 In practice the Member States, or some Member States, often exercise a considerable influence on the negotiations.^ Once the agreement has been negotiated the Council adopts, on a proposal by the negotiator, a decision authorising the signing of the agreement. On a proposal by the negotiator, it concludes the agreement. In many cases the consent of the EP is required before the Council may conclude an agreement. That is the case, inter alia, if the agreement establishes a specific institutional framework by organising cooperation procedures, or if it covers fields to which apply either the ordinary legislative procedure or the special legislative procedure where consent by the EP is required. Throughout the procedure the Council acts by a qualified majority unless the agreement covers a field for which unanimity is required for the adoption of a Union act.

When agreements are negotiated and concluded in the area covered by the CCP, certain special provisions apply.

A Member State, the EP, the Council, or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties (Arts 207 and 218).

• [1] The term ‘agreement’ covers any undertaking entered into by entities subject to international lawwhich has binding force. Case C-327/91 France v Commission EU:C:1994:305, para 27.
• [2] On the division of powers between the Council and the Commission in this context, see Case C-425/13 Commission v CouncilECLI:EU:C:2015:483.
• [3] L Kramer EU Environmental Law (7 th edn, Sweet & Maxwell, 2012) 84.