International agreements and the EU’s external competences

KEY POINTS

International agreements (conventions, treaties)

• International agreements with non-EU countries or with international organisations are an integral part of EU law. These agreements are separate from primary law and secondary legislation and form a sui generis category. According to some judgments of the CJEU, they can have direct effect and their legal force is superior to secondary legislation, which must therefore comply with them.
• They are treaties under public international law and generate rights and obligations for the contracting parties.
• Unlike unilateral acts, conventions and agreements are not the result of a legislative procedure or the sole will of an institution.
• Article 216 TFEU cites the cases in which the EU is authorised to conclude such agreements.
• After having been negotiated and signed, and depending on the subject matter concerned, they may require ratification by an act of secondary legislation.
• International agreements must be applied throughout the EU. They have a legal force superior to unilateral secondary acts, which must therefore comply with them.
• In addition, Article 207 TFEU governs the EU’s trade policy — a key external competence of the EU and a central element of its relations with the rest of the world.

EU external competences

• The EU has legal personality and is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf, i.e. it has competences (or powers) in this field conferred on it by the treaties.
• If the subject matter of an agreement does not fall under the exclusive competence of the EU, EU countries also have to sign the agreement. These are known as ‘mixed agreements’.

Exclusive competence and shared competence

• The distribution of competences between the EU and EU countries also applies at international level. Where the EU negotiates and concludes an international agreement, it has either exclusive competence or competence which is shared with EU countries.
• Where it has exclusive competence, the EU alone has the power to negotiate and conclude the agreement. Article 3 TFEU specifies the areas in which the EU has exclusive competence to conclude international agreements, including trade agreements.
• Where its competence is shared with EU countries, the agreement is concluded both by the EU and by EU countries. It is therefore a mixed agreement to which EU countries must give their consent. Mixed agreements may also require that an internal EU act is adopted to share out the obligations between the EU countries and the EU. Article 4 TFEU sets out which competences are shared.