Mixed agreements and exclusive competence
A related and equally important question as that of the ability of the Union to enter into international agreements is that of the ability of individual Member States to enter into such agreements in the same areas as the Union. The relationship between the competence of the Union and that of the Member States to enter into international agreements differs between policy areas. As previously noted, the CCP is subject to the Union’s exclusive competence. Among other things this means that the Member States are precluded from negotiating and entering into agreements with third countries in this area. The same applies with respect to the conservation of marine biological resources under the CFP (Art 3 TFEU).
The rights and obligations arising from agreements concluded by a State before it became a Member State of the EU with one or more third countries are not, in principle, affected by the EU Treaties. However, to the extent that such agreements are incompatible with the Treaties, the Member State concerned shall take all appropriate steps to eliminate the incompatibilities (Art 351).
In other policy areas, including environment and energy, the Union and the Member States have shared competence (Art 4 TFEU). With respect to environmental policy, it is made clear in Article 191(4) TFEU that the competence of the Union to conclude agreements with third parties shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements. In principle, the Union and the Member States can thus conduct parallel negotiations and independently enter into the same international agreements. Agreements to which the EU and Member States are or may become parties are called ‘mixed agreements’. Such agreements are as legally and politically complex as they are practically significant and have been subject to much analysis.111
However, according to the so-called ‘ERTA doctrine’,n2 the right of the Member States to become parties to international agreements only applies as long as the EU has not internally regulated the subject matter covered by the agreement. Where common rules have been adopted, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with non-member countries, which affect those rules. When that is the case, the EU has exclusive competence to conclude international agreements.n3 The Court ofJustice has subsequently emphasised that the Member States only lose their right to assume obligations with non-member countries as and when common rules, which could be affected by those obligations, come into being.n4
In order to somewhat clarify when common rules may be affected or distorted by international commitments, the Court of Justice has established that that is the case where the international commitments fall within the scope of the common rules, or in any event within an area which is already largely covered by such rules. In the latter case, Member States may not enter into international commitments outside the framework of the EU institutions, even if there is no contradiction between those commitments and the common rules.n5 When the EU has conferred on its
in See, eg, C Hillion and P Koutrakos (eds) Mixed Agreements Revisited: The EU and Its Member States in the Word (Hart Publishing, 2010).
ii2 Case 22/70 Commission v CouncilEU:C:1971:32 (‘ERTA’). u3 Ibid, para 17.
- 114 Opinion 1/94 of15 November 1994 ECLI:EU:C:1994:384, para 77.
- 115 Opinion 2/91 of19 March 1993 ECLI:EU:C:1993:106, paras 25 and 26.
institutions powers to negotiate with non-member countries, it acquires an exclusive external competence in the spheres covered by those acts.    The same applies where the EU has achieved complete harmonisation in a given area, because the common rules could be affected if the Member States retained freedom to negotiate with nonmember countries. 117 The external competence of the Member States is thus dependent on the extent to which the Union has regulated an issue at the internal level.
It is now explicitly stated in Article 3 TFEU that the Union has exclusive competence to conclude 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 in so far as its conclusion may affect common rules or alter their scope. This article is essentially an attempt to codify the case law in this area.n8 However, the Court of Justice has previously found that if an international agreement covers an area which in EU law is regulated only by minimum requirements, such as measures based on Article 192 TFEU, those EU rules are not affected by the agreement as long as the agreement does not prevent its parties from taking more stringent measures. If, namely, in such an area the EU adopts rules which are less stringent than those of the international agreement, the Member States remain free to adopt more stringent measures. If, on the other hand, the Union adopts more stringent measures than those provided for by the agreement, there is nothing to prevent the full application of EU law by the Member States.n9
As previously noted, most agreements relating to environmental protection are so-called mixed agreements, that is, both the Union and Member States may be parties. This can give rise to a certain confusion, for example regarding the division of competence and responsibility between the Union and the Member States. Not least for the other contracting parties to such an agreement, this can be rather opaque. As a remedy the EU often issues a declaration on the division of competence between the Union and the Member States. However, internal division within the Union and the dynamic nature of EU law tend to make these declarations rather vague and less than fully clarifying.
Even though the Member States can act in their own right in relation to mixed agreements, this right is in fact significantly curtailed by a far-reaching requirement for loyal cooperation. The Court of Justice has, inter alia, found that duty to have been violated when a Member State submitted on its own behalf a proposal to include a substance (PFOS) in an Annex to a MEA despite there existing a ‘common strategy’ in the Council not to propose at that time the listing of PFOS.120 The Court also pointed out that where an agreement falls partly within the competence of the EU and partly within that of its Member States, it is essential to ensure close cooperation between the Member States and the EU institutions, both in the process of negotiation and conclusion and in the fulfilment of the commitments entered into. 121 Furthermore the Court has found that the obligation of close cooperation requires a Member State to inform and consult the competent EU institutions before instituting dispute settlement proceedings within the framework of a mixed agreement. °2