External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law

Abstract Discussions on the allocation of international responsibility between an international organization and its member states do not comprehensively engage with the role of obligations in assigning responsibility to the organization and/or its members. The present article sets out what will be termed an obligations-based approach to the allocation of international responsibility by exploring the phenomenon of sharing international obligations by an international organization and its members, as well as the implications thereof for their responsibility under international law. It will do so by focusing on the practice of concluding mixed agreements by the EU and its member states, which commonly results in overlapping obligations for the organization and its members. It is ultimately argued that a distinction should be made between two types of shared obligations in mixed agreements in order to untangle who can be held responsible in case of a breach: the EU, the member state(s), or both.

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

The Oxford Guide to Treaties ◽

10.1093/law/9780198848349.003.0007 ◽

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.

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Foreign Affairs Federalism in the European Union

The Oxford Handbook of Comparative Foreign Relations Law ◽

10.1093/oxfordhb/9780190653330.013.19 ◽

2019 ◽

pp. 331-351

Author(s):

Robert Schütze

Keyword(s):

European Union ◽

International Law ◽

Legal Order ◽

Foreign Affairs ◽

The European Union ◽

Member States ◽

European Court ◽

Treaty Of Rome ◽

Formed Part ◽

Mixed Agreements

The European Union was born as an international organization. The 1957 Treaty of Rome formed part of international law, although the European Court of Justice was eager to emphasize that the Union constitutes “a new legal order” of international law. With time, this new legal order has indeed evolved into a true “federation of States.” Yet how would the foreign affairs powers of this new supranational entity be divided? Would the European Union gradually replace the member states, or would it preserve their distinct and diverse foreign affairs voices? In the past sixty years, the Union has indeed significantly sharpened its foreign affairs powers. While still based on the idea that it has no plenary power, the Union’s external competences have expanded dramatically, and today it is hard to identify a nucleus of exclusive foreign affairs powers reserved for the member states. And in contrast to a classic international law perspective, the Union’s member states only enjoy limited treaty-making powers under European law. Their foreign affairs powers are limited by the exclusive powers of the Union, and they may be preempted through European legislation. There are, however, moments when both the Union and its states enjoy overlapping foreign affairs powers. For these situations, the Union legal order has devised a number of cooperative mechanisms to safeguard a degree of “unity” in the external actions of the Union. Mixed agreements constitute an international mechanism that brings the Union and the member states to the same negotiating table. The second constitutional device is internal to the Union legal order: the duty of cooperation.

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Can the EU Replace its Member States in International Affairs? An International Law Perspective

The European Union in the World ◽

10.1163/9789004259140_009 ◽

2014 ◽

pp. 129-147 ◽

Cited By ~ 6

Keyword(s):

International Law ◽

International Affairs ◽

Member States ◽

The Eu

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INTERNATIONAL LAW ASPECTS OF GERMAN COPYRIGHT LAW (GCL)

Journal of Foreign Legislation and Comparative Law ◽

10.12737/article_598063fae98166.23072693 ◽

2017 ◽

Vol 3 (4) ◽

pp. 93-98

Author(s):

Юрий Юмашев ◽

Yuriy Yumashev ◽

Елена Постникова ◽

Elena Postnikova

Keyword(s):

Intellectual Property ◽

International Law ◽

Legal Regulation ◽

World Intellectual Property Organization ◽

The Internet ◽

Private International Law ◽

Member States ◽

Eu Member States ◽

The Eu

The article deals with international law aspects of the GCL. To this aim firstly the international conventions on copyright law are analyzed, in particular: the Berne Convention for the Protection of Literary and Artistic Works in the wording of the Paris Act of 1971, the Convention on the Establishment of the World Intellectual Property Organization of 1967, the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations of 1961 and Aspects of intellectual property rights (TRIPS) 1994. There is also an analysis of the EU copyright law in terms of its correlation with the law of the EU member-states and an assessment of its evolution. It is emphasized that the core fact of origin of authorship is determined on the basis of the national legislation of the Member-States. Special attention is paid to the scope of the “principle of exhausted rights”. The article also touches upon the aspect of private international law. Particular attention is paid to the legal regulation of the Internet, including Internet providers, and its impact on the formation of the GCL. The problem of combating Internet piracy is also raised, as copyright infringement often occurs in relation to works published online. In addition, the article revealed what changes were made to the GCL to comply with EU law (including secondary law acts and the practice of the EU Court). The result of the study is, among other things, the conclusion that special legal mechanisms should be developed to regulate new forms of selling works that have emerged as a result of technological progress and in the near future the Internet will undoubtedly form ways for the further development of the GCL. However, this process can negatively affect the leading role of the author as a creative person.

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EU Loyalty

EU Powers Under External Pressure ◽

10.1093/oso/9780198785545.003.0003 ◽

2019 ◽

pp. 45-80

Author(s):

Christina Eckes

Keyword(s):

The European Union ◽

National Interests ◽

Member States ◽

Eu Membership ◽

Legal Obligations ◽

External Relations ◽

The Common ◽

Duty Of Loyalty ◽

International Representation ◽

The Eu

Chapter 2 discusses the legal consequences and deeper meaning of EU loyalty with particular attention to external relations. It identifies specific active and passive obligations flowing from the principle of sincere cooperation in the context of EU external relations and argues that they are best understood as forming part of a comprehensive duty of loyalty. EU loyalty endows EU membership with a distinctive meaning. It is central to imposing a quasi-federal discipline and making sovereign states ‘Member States of the EU’ by acting as a tool that can at times take specific legal obligations beyond the letter of the law. EU loyalty legally restrains Member States from exercising their rights as independent international actors in a way that finds no parallel beyond the European Union. It may require placing the common Union interest above national interests. The concept of unity of international representation has a particular capacity to deepen and widen the obligations flowing from EU loyalty. It amplifies the effects of EU loyalty on the scope of legal action of the Member States, including in the field of reserved competences. It is also part of the explanation of why loyalty has more stringent consequences externally rather than internally. This in turn means that the duty of loyalty has a particular integrative force in the context of external relations. Chapter 2 also argues that this stringent understanding of EU loyalty is justified by the nature of external relations and that this justification should be (better) explicated by the EU institutions in order to justify EU external actions vis-à-vis EU citizens.

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Mixed Agreements: The EU Law Fundamentals

Oxford Principles Of European Union Law: The European Union Legal Order: Volume I ◽

10.1093/oso/9780199533770.003.0042 ◽

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

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International Responsibility

The Concept of an International Organization in International Law ◽

10.1093/oso/9780192895790.003.0011 ◽

2021 ◽

pp. 176-207

Author(s):

Lorenzo Gasbarri

Keyword(s):

International Law ◽

International Organizations ◽

International Organization ◽

Member States ◽

Legal Nature ◽

International Responsibility ◽

International Law Commission ◽

Final Consequence ◽

Law Commission

The final consequence of the dual legal nature discussed in the book concerns the international responsibility of international organizations. In particular, this chapter describes how the absence of a common conceptualization affected the work of the International Law Commission, the International Law Institute, and the International Law Association. Afterwards, the chapter focuses on the dual attribution of conduct to an international organization and to its member states. It contends that dual attribution is extremely important in practice and it reviews the cases in which it was at issue. After providing a set of principles on how to apply the dual attribution, it distinguishes between three sets of circumstances: dual attribution via institutional links, dual attribution via factual links, and exclusion of dual attribution when the conduct is attributable to only the organization or its member states. Finally, it discusses the effects of dual attribution in terms of joint responsibility.

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Forced Migration Governance: In Search of Sovereignty

German Law Journal ◽

10.1017/s2071832200021532 ◽

2016 ◽

Vol 17 (6) ◽

pp. 923-948 ◽

Cited By ~ 1

Author(s):

Anuscheh Farahat ◽

Nora Markard

Keyword(s):

International Law ◽

Asylum Seekers ◽

Third World ◽

Forced Migration ◽

Loss Of Control ◽

The European Union ◽

Member States ◽

Eu Member States ◽

Refugee Protection ◽

The Eu

The European Union (EU) Member States have experienced the recent refugee protection crisis in the EU as a de-facto loss of control over their borders. They find themselves unable to subject entry into their territory to a sovereign decision. In response, the Member States have sought to regain full sovereignty over matters of forced migration, both unilaterally and cooperatively, seeking to govern a phenomenon—forced migration—that by definition defies governance. Unilateral measures include forced migration caps and a search for ways to circumvent responsibility under the Dublin system. Cooperative efforts by EU Member States include the search for ways to more effectively govern forced migration at the EU level and beyond. Supranational EU efforts include the introduction of an internal relocation scheme and support for Italy and Greece in processing asylum claims in so-called “hotspots.” Beyond the EU, Member States are seeking to externalize protection responsibility to third world countries under international agreements, in particular, by returning asylum seekers to Turkey. This Article outlines the unilateral and cooperative governance efforts undertaken and shows that states' sovereign decisions over migration are significantly limited in the case of forced migrants, both by EU law and by international law.

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Prior Exhaustion of Internal Remedies in Cases Involving the International Responsibility of the European Union

The Italian Yearbook of International Law Online ◽

10.1163/22116133-02201005 ◽

2013 ◽

Vol 22 (1) ◽

pp. 59-89

Author(s):

Simone Vezzani

Keyword(s):

European Union ◽

International Law ◽

Effective Means ◽

The European Union ◽

International Organisations ◽

Diplomatic Protection ◽

Legal Remedies ◽

International Responsibility ◽

International Law Commission ◽

The Eu

As recognised by the International Law Commission in the 2011 Draft Articles on the Responsibility of International Organisations, the rule of the prior exhaustion of internal remedies also applies to cases where the international responsibility of international organisations is invoked, be it in the field of diplomatic protection or human rights. This essay focuses on the application of this rule to the European Union (EU). The author maintains that the legal remedies available to individuals alleging injury as a result of an internationally wrongful act of the EU include both direct remedies before EU courts and remedies before domestic tribunals. He then scrutinises whether each remedy is capable of providing individuals with accessible and effective means of redress.

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