The status of international agreements in EU law

Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States (Art 216 TFEU). They form an integral part of the EU legal order and even have primacy over secondary EU legislation.⁰³ Mixed agreements have the same status in the EU legal order as purely EU agreements in so far as the provisions fall within the scope of EU competence.⁰⁴

In ensuring compliance with commitments arising from agreements concluded by the EU, the Member States fulfil an obligation in relation to the EU, which has assumed responsibility for the due performance of the agreement.°5 Failure to ensure such compliance is accordingly a violation of their obligations under EU law.

The Court of Justice can examine the validity of EU legislation in the light of an international treaty provided that the Union is bound by the treaty. However, it cannot be done if the nature and the broad logic of the treaty precludes it, or if the treaty’s provisions do not appear, as regards their content, to be unconditional and sufficiently precise.⁰⁶

Treaties to which the Member States but not the Union itself are parties can influence the interpretation of secondary EU law. In Intertanko the validity of a directive could not be examined in the light of MARPOL 73/78 since the EU was not party to that agreement, even though the directive had the objective of incorporating certain parts of MARPOL 73/78 into EU law. But the Court did find that the customary principle of good faith, which forms part of general international law, and the requirement for loyal cooperation in what is now Article 4 TEU required it to take account of MARPOL 73/78 when interpreting the EU directive.^ However, this does not apply with respect to international agreements to which only some Member States are contracting parties, since that would amount to extending the scope of that obligation to those Member States which are not parties to the agreement. That would violate the general international law principle according to which treaties must neither harm nor benefit third countries.⁰⁸

When the EU becomes party to international agreements it often transposes their substantive provisions to secondary EU law, often regulations. That makes it clear that the provisions are binding and subject to the Commission’s oversight as ^{[1] [2] [3] [4] [5]}

to their correct application. With the exception of WTO agreements, the Court of Justice has also tended to grant international agreements direct effect. Agreements entered into by the EU with non-member countries are, in principle, directly applicable to the extent that they contain a clear, precise, and unconditional obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.⁰⁹ These criteria have, inter alia, been found to be satisfied by a provision in the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, although it refers to ‘the relevant decisions or recommendations of the meetings of the Contracting Parties’, which the competent national authorities must take into account.¹³⁰ In Lesoochranarske zoskupenie the Court found that Article 9(3) of the Aarhus Convention,^m on access to administrative or judicial procedures to challenge certain acts and omissions, does not contain any clear and precise obligation capable of directly regulating the legal position of individuals, the reason being that since ‘only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights’ provided for in that article, that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.132 A further important exception is UNCLOS, ‘the nature and the broad logic’ of which prevent its use for examining the validity of EU measures according to the Court of Justice.133

Finally, it should be noted that, in its relations with the wider world, the Union shall, inter alia, contribute to the sustainable development of the Earth and to the strict observance and the development of international law (Art 3 TEU). This means that when the EU adopts an act, it is bound to observe international law in its entirety, including customary international law, which is binding upon the institutions of the EU.13⁴

Further Reading

A Dashwood and M Maresceau (eds) Law and Practice of EU External Relations: Salient Features of a Changing Landscape (Cambridge University Press, 2008)

C Hillion and P Koutrakos (eds) Mixed Agreements Revisited: The EU and its Member States in the World (Hart Publishing, 2010)

M Lee EU Environmental Law, Governance and Decision-Making (Hart Publishing, 2014) N de Sadeleer EU Environmental Law and the Internal Market (Oxford University Press, 2014) Chap 3

• 129 Case 12/86 Demirel(n 125), para 14.
• 130 Case C-213/03 Pecheurs de l’etang de Berre ECLI:EU:C:2004:464, para 46.
• 131 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (Aarhus, 25 June 1998) 2161 UNTS 447.
• 132 CaseC-240/09 Lesoochranarske zoskupenie ECLI:EU:C:2011:125, para 45.
• 133 Case C-308/06 Intertanko (n 123), para 65.
• 134 Case C-366/10 Air Transport Association of America ECLI:EU:C:2011:864, para 101.

• [1] CaseC-459/03 Commission vIrelandECLI:EU:C:2006:345, para 179.
• [2] 123 Case C-308/06 Intertanko and Others ECLI:EU:C:2008:312, para 42.
• [3] Case C-239/03 Commission v France ECLI:EU:C:2004:598, para 25.
• [4] Case 12/86 Demirel ECLI:EU:C:1987:400, para 11.
• [5] Case C-308/06 Intertanko (n 123), paras 43—45. 127 Ibid, para 52. 128 Case C-537/11 Manzi and Compagnia Naviera Orchestra ECLI:EU:C:2014:19, para 47.