Making Treaties and Other International Agreements

2019 ◽  
pp. 238-256
Author(s):  
Marise Cremona
Keyword(s):  
European Union ◽  
Foreign Relations ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Executive Discretion ◽  
External Powers ◽  
Mixed Agreements ◽  
The Eu

This chapter examines the foreign relations law of the European Union concerning the making of treaties and other international agreements. It first outlines the sources of EU law on treaty-making and the legal and constitutional context in which EU treaty-making takes place. It then turns to the law relating to the process of treaty negotiation and to the signature, provisional application, and conclusion of treaties, identifying the ways in which the specific legal characteristics of the European Union as a treaty maker are reflected in its foreign relations law. These include the principle of conferred powers, whereby all treaty-making power must be conferred expressly or impliedly by the EU Treaties, and the institutional balance of powers. For the European Union, treaty-making is not a manifestation of sovereignty and cannot be regarded as simply a matter of executive discretion; the policy balance of a projected treaty and its relation to the European Union’s general objectives may be subject to judicial assessment. The member states remain sovereign subjects of international law and, as a matter of EU law, the European Union’s external powers do not necessarily displace those of the member states. As a result, the European Union and member states will often enter into treaties together, although there are no formal rules in the EU system, apart from the general mutual duties of cooperation, governing the negotiation and conclusion of such “mixed agreements.”

Mixed Agreements: The EU Law Fundamentals

2018 ◽  
Author(s):  
Joni Heliskoski
Keyword(s):  
European Union ◽  
Case Law ◽  
International Agreements ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Basic Characteristics ◽  
Mixed Agreements ◽  
The Eu

Whatever terminology one might wish to employ to describe the form of integration constituted by the European Union and its Member States, one fundamental attribute of that arrangement has always been the division, as between the Union and its Member States, of competence to conclude international agreements with other subjects of international law. Today, the fact that treaty-making competence—as an external facet of the more general division of legal authority—is divided and, to some extent, shared between the Union and its Member States is reflected by some of the opening provisions of the Treaty on European Union and the Treaty on the Functioning of the European Union. Notwithstanding the changes to the scope and nature of the powers conferred upon the Union, resulting from both changes to primary law and the evolution of the case law of the Court of Justice of the European Union (CJEU), the basic characteristics of the conferment as an attribution of a limited kind has always been the same; there has always existed a polity endowed with a treaty-making authority divided between and, indeed, shared by, the Union and its Member States. In the early 1960s mixed agreements—that is, agreements to which the European Union

Part II The Treaty-Makers, 6 Who Can Make Treaties? The European Union

2020 ◽  
Author(s):  
Cremona Marise
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
International Treaty ◽  
Multilateral Agreements ◽  
International Responsibility ◽  
The Impact ◽  
Mixed Agreements ◽  
The Eu

This chapter examines the EU’s robust and complex treaty-making. The first section deals with the EU’s treaty-making capacity from the perspective of EU law, and then of international treaty practice. It examines the ways in which international treaty-making practice has accommodated EU participation in bilateral and in multilateral agreements. The second section discusses the legal effects of treaties concluded by the EU, first as regards the EU legal order, including their enforcement and interpretation by the Court of Justice of the European Union and the legal effects of mixed agreements. A discussion of the impact of EU treaty-making on the powers of the Member States follows: through the doctrines of exclusivity and pre-emption, the impact of EU law on treaties concluded by the Member States, and finally EU treaty-making from the perspective of international responsibility.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

Legal conflict between the EU and the republic of Poland regarding polish judicial reform

2021 ◽  
Author(s):  
Ivan Yakovyuk ◽  
Suzanna Asiryan ◽  
Anastasiya Lazurenko
Keyword(s):  
European Union ◽  
Judicial Reform ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Court Of Justice ◽  
Legal Nature ◽  
Constitutional Tribunal ◽  
The Republic ◽  
The Eu

Problem setting. On October 7, 2021, the Constitutional Tribunal of the Republic of Poland ruled in favor of Polish law over European Union law, which in the long run may violate the principles according to which the Union operates and the rights enjoyed by citizens of the state. Such a precedent can further serve as a basis for identical decisions of the bodies of constitutional jurisdiction of those states that have problems in fulfilling their obligations in the European community. Analysis of recent researches and publications. The problems of the functioning of the bodies of the European Union, the implementation of their decisions and the general status in EU law are widely studied in national science. In particular, many scholars have studied the legal nature of the EU, including: TM Anakina, VI Muravyov, NM Ushakov, A. Ya. Kapustina, NA Korolyova, Yu. Yumashev, BN Topornin, OYa Tragniuk, SS Seliverstov, IV Yakovyuk and others. Target of research is to establish the foundations of EU law in the functioning of Union bodies, especially the Court, as well as to determine the hierarchy of national law and EU law. Article’s main body. Over the years, the Court has, within its jurisdiction, issued a large number of judgments which have become the source of the Union’s Constituent Treaties and of EU law in general. Over the last two decades, the powers of the Court of Justice have changed significantly. In particular, this is due to the adoption of the Lisbon Treaty, which amended the EU’s founding treaties on the powers of the Court, then the reform of the European Court took place in 2015-2016, which concerned a change in the organizational structure of the Court. Despite the generally well-established case law of the Court of Justice of the European Union on the unification of the observance by the Member States of the basic principles of the European Union, the Constitutional Tribunal of the Republic of Poland adopted a decision on 7 October. Conclusions and prospects for the development. Following the decision of the Constitutional Court, the Polish authorities found themselves in a situation that significantly complicated its internal and external situation. The way out of which requires answers to fundamental questions about the legal nature of the EU. Undoubtedly, this is an issue not only between Poland and the EU, but also between other member states.

Accession to International Instruments as an EU Legality Constraint

2021 ◽  
pp. 100-122
Author(s):  
Bruno De Witte
Keyword(s):  
European Union ◽  
International Agreements ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
International Commitments ◽  
International Obligations ◽  
Legal Space ◽  
International Instruments ◽  
The Eu

When the EU becomes a party to an international legal instrument, whether bilateral or multilateral, that international agreement is incorporated automatically in the EU legal order and becomes a legality constraint within that legal order, due to the recognition, by EU law itself, of the precedence of those international commitments over secondary EU law. In the multilevel European legal space, agreements concluded by the EU also become a legality constraint for the Member States of the EU, even if they are not parties to the international instrument themselves. Ensuring compliance with the EU’s international obligations sets in motion the adoption of internal legislation to implement those international obligations or to repeal existing EU law measures that are inconsistent with them; and the Court of Justice of the European Union can review the compliance of EU secondary law (and Member State law) with the EU’s international agreements. However, the Court has self-limited this review power through the development of a doctrine on the limited direct effect of international agreements.

A Community of Principle

2020 ◽  
pp. 108-143
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
Point Of View ◽  
Eu Law ◽  
The European Union ◽  
European Union Law ◽  
Member States ◽  
Law Of Nations ◽  
Domestic Law ◽  
Rival View ◽  
The Eu

This chapter examines the question of the relations between EU law and domestic law from the point of view of a political theory of the European Union. It is common to see EU law under ‘federalism’ or under a theory of ‘statism’. These two views are outlined at the start of this chapter by examining various arguments made for them. They are both rejected. The chapter defends a rival view, the ‘internationalist’ reading of the EU, according to which it is a branch of the law of nations. A careful look at the EU treaties and the case law of the Court of Justice of the EU shows that the EU endorses an internationalist model based on equality and reciprocity. The EU does not replace the relation between citizens and political power. It does not establish a new constitutional law that replaces the national ones. It is a new way of organizing the relations between the various member states whose equality it fully respects. The coherence of European Union law is therefore not provided by uniformity imposed by a single master or constitutional rule, but is given by the political coordination of the laws of the member states achieved under the treaties. Coherence is achieved because the member states have adopted similar, although not identical, constitutional principles.

scholarly journals EU Foreign Relations Law as a Field of Scholarship

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 321-325 ◽  
Author(s):  
Joris Larik
Keyword(s):  
European Union ◽  
International Law ◽  
Foreign Relations ◽  
Legal Order ◽  
International Organization ◽  
Eu Law ◽  
The European Union ◽  
External Relations ◽  
Scholarly Attention ◽  
The Eu

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.

scholarly journals References for a Preliminary Ruling to the European Union Court of Justice: The Substantive Criteria of Admissibility

2019 ◽  
Vol 14 (4) ◽  
pp. 131-156 ◽  
Author(s):  
Elena A. Sorokina
Keyword(s):  
European Union ◽  
National Court ◽  
Preliminary Ruling ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Legal Traditions ◽  
National Courts ◽  
Acceptability Criteria ◽  
The Eu

The preliminary ruling procedure as stipulated by Article 276 of the Treaty on the functioning of the European Union had a significant impact on the de-ve lop ment of EU law and became a collaborative tool as part of the dialogue bet-ween supranational and national judges.The mechanism of preliminary ruling enables to ensure a uniform interpretation and application of the provisions of EU law with all member states and consti tutes an instrumental element for preserving the uniformity of the European legal system.When developing the mechanism of preliminary ruling at EU level one consi-dered constitutional & legal traditions of member states, however, for long periods, the EU was perceived as "exotic" one and its impact on the national law was often underesti mated. Initially there were no any clear concepts how the mechanism of preliminary ruling would work. The EU court encouraged national judges of member states to use this mechanism; however, gradually it started introducing certain acceptability criteria in respect of such requests.The practice of the EU Court was summarized in the updated Rules of Procedure of 25 September 2012. During the period from 2014 to 2018, the number of cases sub mitted for preliminary ruling procedure was increasingly growing. Consequently, natio nal courts had started using this procedure relatively intensively and the con so-li dation of acceptability criteria created no serious problems for them.The imposition by the EU Court of minimal requirements towards the substance of requests does not reduce their number, since the acknowledgement of a re quest as inadmissible does not prevent a national court from sending a repeated re quest. However, it contributes to the improvement of quality and efficiency of the pre li mi-nary ruling procedure. The establishment of the respective requirements is necessary to ensure that the EU Court could provide national courts with an interpretation of EU law useful for resolution of a specific dispute and ensure constructiveness of the dialogue.

3. Scope of the EU Treaty: laws and lawmaking

2020 ◽  
pp. 53-88
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
European Parliament ◽  
Soft Law ◽  
Democratic Deficit ◽  
Eu Law ◽  
The European Union ◽  
Member States ◽  
Law Making ◽  
The Eu

This chapter examines the lawmaking powers of the European Union (EU) in the context of its Treaties. It explains that the EU has the competence to make law of various types (including secondary legislation, soft law, delegated acts and implementing acts) in a broad range of areas and that the amendments to the lawmaking procedures have affected the institutional balance, giving an increased role to the European Parliament. It discusses the changes made to improve the level of democracy at EU level, to address concerns that EU law-making has a ‘democratic deficit’ and lacks transparency and proportionality. The chapter also considers the different aspects of EU competence, describes the lawmaking process and sources of EU law and also addresses questions concerning the determination of exclusive, shared and concurrent competence, particularly in the context of subsidiarity. Furthermore, it examines the rules on the EU adopting legislation without all Member States participating (closer cooperation).

The Jurisprudence of Integration

2020 ◽  
pp. 1-21
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Effective Response ◽  
Member States ◽  
Political Problem ◽  
Political Interpretation ◽  
The Eu

This chapter introduces the central legal and political interpretations of the European Union (EU). The Court of Justice of the European Union (CJEU) suggests a federalist legal account when it speaks of EU law as a ‘new legal order’ and as ‘autonomous’ from international law and the law of the member states. This doctrine has met with resistance by the courts of the member states, which have refused to apply EU law without reference to their domestic constitution. The courts’ views can be seen as either a ‘constitutional’ approach, which we find in Neil MacCormick’s ‘pluralism’ under international law, or in the ‘pluralism’ defended by Mattias Kumm, Neil Walker, and others. But the general legal architecture of the EU is not only a theoretical but also a political problem. These legal interpretations correspond to rival political approaches, namely ‘federalism’, ‘statism’, and a new view proposed in this book ‘internationalism’. The most challenging political view of the EU, articulated for example by the historian Noel Malcolm, believes that it is actually a serious risk to self-government and democracy. Any legal and political interpretation of the treaties supporting the legitimacy of the EU requires that we have an effective response to this democratic challenge. Can the EU be democratically legitimate?

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