Keywords
Summary

Keywords

1. INTERNATIONAL AGREEMENTS - COMMUNITY AGREEMENTS - PRIOR OPINION OF THE COURT - COMPATIBILITY WITH THE EEC TREATY - COURT ' S ASSESSMENT - SCOPE

(EEC TREATY, SECOND SUBPARAGRAPH OF ART. 228 (1))

2. INTERNATIONAL AGREEMENTS - COMMUNITY AGREEMENTS - PRIOR OPINION OF THE COURT - REQUEST FOR OPINION - PERMISSIBILITY - COUNCIL'S POWER OF AMENDMENT TO PROPOSALS FROM COMMISSION - ABSENCE OF EFFECT

(EEC TREATY, ART. 149 AND SECOND SUBPARAGRAPH OF ART. 228 (1))

3. INTERNATIONAL AGREEMENTS - COMMUNITY AGREEMENTS - PRIOR OPINION OF THE COURT - REQUEST FOR OPINION - PERMISSIBILITY - CONDITIONS - KNOWLEDGE OF SUBJECT-MATTER OF AGREEMENT - INFORMATION AVAILABLE

(EEC TREATY, SECOND SUBPARAGRAPH OF ART. 228 (1))

4. COMMON COMMERCIAL POLICY - CONCEPT - RESTRICTIVE INTERPRETATION - NOT POSSIBLE - LIBERALIZATION OF TRADE - REGULATING INTERNATIONAL TRADE - INCLUSION

(EEC TREATY, ART. 113)

5. COMMON COMMERCIAL POLICY - ECONOMIC POLICY - CONCEPTS - DEMARCATION

(EEC TREATY, ARTS. 6, 103 TO 116, 145)

6. COMMON COMMERCIAL POLICY - CONCEPT - ORGANIZATION OF ECONOMIC LINKS WITH NON-MEMBER COUNTRIES - BUILDING UP OF SECURITY STOCKS OF A PRODUCT - POWERS OF THE COMMUNITY - POWERS OF MEMBER STATES IN MATTERS OF ECONOMIC POLICY - ABSENCE OF EFFECT

(EEC TREATY, ART. 113)

7. INTERNATIONAL AGREEMENTS - COMMON COMMERCIAL POLICY - AGREEMENTS NEGOTIATED WITHIN THE FRAMEWORK OF INTERNATIONAL ORGANIZATIONS - PARTICIPATION OF THE COMMUNITY OR COMMON ACTION BY MEMBER STATES - RESPECTIVE SPHERES OF APPLICATION OF THE TWO PROCEDURES - DEMARCATION - CRITERIA - OBJECT OF THE NEGOTIATIONS

(EEC TREATY, ART. 113, 114, 116 AND THE FIRST SUBPARAGRAPH OF ART. 228 (1))

8. INTERNATIONAL AGREEMENTS - COMMON COMMERCIAL POLICY - AGREEMENT INVOLVING OBLIGATION TO PROVIDE FINANCE - POWERS OF THE COMMUNITY - NECESSITY FOR MEMBER STATES TO PARTICIPATE - APPRECIATION DEPENDENT UPON CHARGES BORNE

(EEC TREATY, ART. 113)

9. INTERNATIONAL AGREEMENTS - COMMUNITY AGREEMENTS - DEPENDENT TERRITORIES OF A MEMBER STATE WHICH DO NOT BELONG TO THE COMMUNITY - MANNER OF PARTICIPATION IN AGREEMENTS - REPRESENTATION BY MEMBER STATE CONCERNED - NO EFFECT ON DIVISION OF POWERS BETWEEN COMMUNITY AND MEMBER STATES

(EEC TREATY, SECOND SUBPARAGRAPH OF ART. 228 (1))

Summary

1. UNDER THE PROCEDURE OF THE SECOND SUBPARAGRAPH OF ARTICLE 228 (1), IT IS POSSIBLE TO CONSIDER ALL QUESTIONS WHICH CONCERN THE COMPATIBILITY WITH THE PROVISIONS OF THE TREATY OF AN AGREEMENT ENVISAGED. IN FACT A JUDGMENT ON THE COMPATIBILITY OF AN AGREEMENT WITH THE TREATY MAY DEPEND NOT ONLY ON PROVISIONS OF SUBSTANTIVE LAW BUT ALSO ON THOSE CONCERNING THE POWERS, PROCEDURE OR ORGANIZATION OF THE INSTITUTIONS OF THE COMMUNITY.

2. ALTHOUGH ARTICLE 149 OF THE EEC TREATY EMPOWERS THE COUNCIL, IF IT IS UNANIMOUS, TO AMEND A PROPOSAL FROM THE COMMISSION IT CANNOT HOWEVER BE INTERPRETED, NOR CAN THAT METHOD OF DECISION BE UNDERSTOOD, AS FREEING THE COUNCIL IN SUCH A CASE FROM OBSERVING THE OTHER RULES OF THE TREATY, IN PARTICULAR THOSE CONCERNING THE DIVISION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES. IN CASE OF DOUBT REGARDING THAT DIVISION OF POWERS IN THE MATTER OF THE NEGOTIATION AND CONCLUSION OF INTERNATIONAL AGREEMENTS ARTICLE 149 CANNOT STAND IN THE WAY OF THE RIGHT OF THE COMMISSION OR, ACCORDING TO THE CIRCUMSTANCES, OF THE COUNCIL ITSELF OR OF THE MEMBER STATES TO HAVE RECOURSE TO THE PROCEDURE PROVIDED IN ARTICLE 228 FOR OVERCOMING SUCH DOUBTS.

3. A REQUEST FOR AN OPINION IN PURSUANCE OF ARTICLE 228 OF THE EEC TREATY IS NOT PREMATURE SIMPLY BECAUSE AT THE TIME WHEN THE MATTER IS REFERRED TO THE COURT THERE ARE IN THE TEXT OF THE AGREEMENT WHICH IS IN COURSE OF NEGOTIATION A NUMBER OF ALTERNATIVES STILL OPEN AND DIFFERENCES OF OPINION ON THE DRAFTING OF GIVEN CLAUSES.

A REQUEST FOR AN OPINION RELATING TO THE POWER TO NEGOTIATE AND CONCLUDE AN AGREEMENT AND INTERVENING IN SUCH A SITUATION IS PERMISSIBLE ONCE THE SUBJECT-MATTER OF THE AGREEMENT IS KNOWN, EVEN BEFORE NEGOTIATIONS HAVE BEEN COMMENCED, AND ONCE THE COURT HAS SUFFICIENT INFORMATION TO MAKE IT POSSIBLE TO FORM A SUFFICIENTLY CERTAIN JUDGMENT ON THE QUESTION RAISED. WHEN A QUESTION OF POWERS IS TO BE DETERMINED IT IS IN THE INTERESTS OF ALL THE STATES CONCERNED, INCLUDING NON-MEMBER COUNTRIES, FOR SUCH A QUESTION TO BE CLARIFIED AS SOON AS ANY PARTICULAR NEGOTIATIONS ARE COM- MENCED.

4. IT WOULD NO LONGER BE POSSIBLE TO CARRY ON ANY WORTHWHILE COMMON COMMERCIAL POLICY IF THE COMMUNITY WERE NOT IN A POSITION TO AVAIL ITSELF ALSO OF MORE ELABORATE MEANS DEVISED WITH A VIEW TO FURTHERING THE DEVELOPMENT OF INTERNATIONAL TRADE. IT IS THEREFORE NOT POSSIBLE TO LAY DOWN, FOR ARTICLE 113 OF THE EEC TREATY, AN INTERPRETATION THE EFFECT OF WHICH WOULD BE TO RESTRICT THE COMMON COMMERCIAL POLICY TO THE USE OF INSTRUMENTS INTENDED TO HAVE AN EFFECT ONLY ON THE TRADITIONAL ASPECTS OF EXTERNAL TRADE, IN PARTICULAR THE LIBERALIZATION OF TRADE, TO THE EXCLUSION OF MORE HIGHLY DEVELOPED MECHANISMS OF SUCH A KIND AS TO BRING ABOUT THE ORGANIZATION ON A WORLD SCALE OF THE MARKET IN A BASIC PRODUCT.

IN EMPOWERING THE COMMUNITY TO FORMULATE A COMMERCIAL "POLICY", BASED ON "UNIFORM PRINCIPLES" ARTICLE 113 SHOWS THAT THE QUESTION OF EXTERNAL TRADE MUST BE GOVERNED FROM A WIDE POINT OF VIEW AND NOT ONLY HAVING REGARD TO THE ADMINISTRATION OF PRECISE SYSTEMS SUCH AS CUSTOMS AND QUANTITATIVE RESTRICTIONS. THE SAME CONCLUSION MAY BE DEDUCED FROM THE FACT THAT THE ENUMERATION IN ARTICLE 113 OF THE SUBJECTS COVERED BY COMMERCIAL POLICY IS NON-EXHAUSTIVE AND MUST NOT, AS SUCH, CLOSE THE DOOR TO THE APPLICATION IN A COMMUNITY CONTEXT OF ANY OTHER PROCESS INTENDED TO REGULATE EXTERNAL TRADE. A RESTRICTIVE INTERPRETATION OF THE CONCEPT OF COMMON COMMERCIAL POLICY WOULD RISK CAUSING DISTURBANCES IN INTRA-COMMUNITY TRADE BY REASON OF THE DISPARITIES WHICH WOULD THEN EXIST IN CERTAIN SECTORS OF ECONOMIC RELATIONS WITH NON-MEMBER COUNTRIES.

5. WITH REGARD TO THE DEMARCATION WITHIN THE STRUCTURE OF THE EEC TREATY OF THE CONCEPTS OF "ECONOMIC POLICY" AND "COMMERCIAL POLICY", IT MAY BE NOTED THAT ALTHOUGH CERTAIN PROVISIONS, SUCH AS ARTICLES 6 AND 145, CONSIDER ECONOMIC POLICY AS A QUESTION OF NATIONAL INTEREST, OTHERS ENVISAGE IT AS BEING A MATTER OF COMMON INTEREST; SUCH IS THE POSITION IN PARTICULAR WITH ARTICLES 103 TO 116, WHICH ARE GROUPED TOGETHER IN A TITLE DEVOTED TO THE "ECONOMIC POLICY" OF THE COMMUNITY. THE CHAPTER DEVOTED TO THE COMMON COMMERCIAL POLICY FORMS PART OF THAT TITLE.

AS INTERNATIONAL CO-OPERATION IN THE ECONOMIC FIELD COMES, AT LEAST IN PART, UNDER THE COMMON COMMERCIAL POLICY IT COULD NOT, UNDER THE NAME OF GENERAL ECONOMIC POLICY, BE WITHDRAWN FROM THE COMPETENCE OF THE COMMUNITY.

6. HAVING REGARD TO THE SPECIFIC NATURE OF THE PROVISIONS OF THE EEC TREATY RELATING TO COMMERCIAL POLICY IN SO FAR AS THEY CONCERN RELATIONS WITH NON-MEMBER COUNTRIES AND ARE FOUNDED, ACCORDING TO ARTICLE 113, ON THE CONCEPT OF A COMMON POLICY, THEIR SCOPE CANNOT BE RESTRICTED IN THE LIGHT OF MORE GENERAL PROVISIONS RELATING TO ECONOMIC POLICY AND BASED ON THE IDEA OF MERE CO-ORDINATION. CON- SEQUENTLY, WHERE THE ORGANIZATION OF THE COMMUNITY ' S ECONOMIC LINKS WITH NON-MEMBER COUNTRIES MAY HAVE REPERCUSSIONS ON CERTAIN SECTORS OF ECONOMIC POLICY SUCH AS THE SUPPLY OF RAW MATERIALS TO THE COMMUNITY OR PRICE POLICY, AS IS THE CASE WITH THE REGULATION OF INTERNATIONAL TRADE IN COMMODITIES, THAT CONSIDERATION DOES NOT CONSTITUTE A REASON FOR EXCLUDING SUCH OBJECTIVES FROM THE FIELD OF APPLICATION OF THE RULES RELATING TO THE COMMON COMMERCIAL POLICY. SIMILARLY, THE FACT THAT A PRODUCT MAY HAVE A POLITICAL IMPORTANCE BY REASON OF THE BUILDING UP OF SECURITY STOCKS IS NOT A REASON FOR EXCLUDING THAT PRODUCT FROM THE DOMAINE OF THE COMMON COMMERCIAL POLICY.

7. ARTICLES 113 AND 116 OF THE TREATY CONTRIBUTE TO THE SAME END INASMUCH AS THEIR OBJECTIVE IS THE REALIZATION OF A COMMON POLICY IN INTERNATIONAL ECONOMIC RELATIONSHIPS, BUT AS A BASIS FOR ACTION THE TWO ARTICLES ARE FOUNDED ON DIFFERENT PREMISES AND CONSEQUENTLY APPLY DIFFERENT IDEAS. ACCORDING TO ARTICLE 113 THE COMMON COMMERCIAL POLICY IS DETERMINED BY THE COMMUNITY, INDEPENDENTLY, THAT IS TO SAY, ACTING AS SUCH, BY THE INTERVENTION OF ITS OWN INSTITUTIONS; IN PARTICULAR, AGREEMENTS ENTERED INTO UNDER THAT PROVISION ARE, IN THE TERMS OF ARTICLE 114, "CONCLUDED.. . ON BEHALF OF THE COMMUNITY" AND ACCORDINGLY NEGOTIATED ACCORDING TO THE PROCEDURES SET OUT IN THOSE PROVISIONS AND IN ARTICLE 228. ARTICLE 116 ON THE OTHER HAND WAS CONCEIVED WITH A VIEW TO EVOLVING COMMON ACTION BY THE MEMBER STATES IN INTERNATIONAL ORGANIZATIONS OF WHICH THE COMMUNITY IS NOT PART; IN SUCH A SITUATION THE ONLY APPROPRIATE MEANS IS CONCERTED, JOINT ACTION BY THE MEMBER STATES AS MEMBERS OF THE SAID ORGANIZATIONS.

TO DEMARCATE THE SPHERE OF APPLICATION OF ARTICLES 113 AND 114 OF THE EEC TREATY ON THE ONE HAND AND ARTICLE 116 ON THE OTHER, FROM THE POINT OF VIEW OF THE PARTICIPATION OF THE COMMUNITY AND ITS MEMBER STATES IN AN INTERNATIONAL AGREEMENT NEGOTIATED WITHIN THE FRAMEWORK OF AN INTERNATIONAL ORGANIZATION, THE ESSENTIAL POINT IS TO DETERMINE WHETHER NEGOTIATIONS UNDERTAKEN WITHIN SUCH A FRAMEWORK ARE INTENDED TO LEAD TO AN AGREEMENT WITHIN THE MEANING OF ARTICLE 228, THAT IS TO SAY TO AN "UNDERTAKING ENTERED INTO BY ENTITIES SUBJECT TO INTERNATIONAL LAW WHICH HAS BINDING FORCE". IN SUCH A CASE IT IS THE PROVISIONS OF THE TREATY RELATING TO THE NEGOTIATION AND CONCLUSION OF AGREEMENTS, IN OTHER WORDS ARTICLES 113, 114 AND 228, WHICH APPLY AND NOT ARTICLE 116.

8. WITH REGARD TO AN INTERNATIONAL AGREEMENT FORMING PART OF THE COMMERCIAL POLICY WITHIN THE MEANING OF ARTICLE 113 OF THE EEC TREATY AND INVOLVING AN OBLIGATION TO CONTRIBUTE TO THE FINANCING OF A BUFFER STOCK, THE POWERS OF THE COMMUNITY TO NEGOTIATE AND CONCLUDE SUCH AN AGREEMENT MAY DEPEND ON THE SYSTEM OF FINANCING. IF THE FINANCIAL BURDENS FALL UPON THE COMMUNITY BUDGET THE POWERS WILL BELONG TO THE COMMUNITY; IF THE BURDENS ARE CHARGED DIRECTLY TO THE BUDGETS OF THE MEMBER STATES THEIR PARTICIPATION, TOGETHER WITH THE COMMUNITY, WILL BE NECESSARY.

AS LONG AS THE QUESTION OF THE DISTRIBUTION OF THE CHARGES HAS NOT BEEN SETTLED THE MEMBER STATES MUST BE ALLOWED TO PARTICIPATE IN THE AGREEMENT.

9. THE "DEPENDENT TERRITORIES", WHOSE REPRESENTATION IN INTERNATIONAL RELATIONS IS UNDERTAKEN BY A MEMBER STATE, BUT WHICH REMAIN OUTSIDE THE SPHERE OF APPLICATION OF THE EEC TREATY, ARE, AS REGARDS THE COMMUNITY, IN THE SAME SITUATION AS NON-MEMBER COUNTRIES. HENCE, THE POSITION OF THE MEMBER STATE WHICH IS REPONSIBLE FOR THEIR INTERNATIONAL RELATIONS MUST BE DEFINED, IN RELATION TO AN AGREEMENT TO BE CONCLUDED BY THE COMMUNITY, IN A DUAL CAPACITY : IN SO FAR AS IT IS A MEMBER OF THE COMMUNITY AND IN SO FAR AS IT REPRESENTS THE SAID TERRITORIES INTERNATIONALLY. THE POSITION OF SUCH A STATE AS A MEMBER OF THE COMMUNITY IS NOT AFFECTED BY THE FACT THAT IT ACTS AS THE INTERNATIONAL REPRESENTATIVE OF THE TERRITORIES CONCERNED. IT IS HOWEVER IN THAT CAPACITY AND NOT AS A MEMBER STATE OF THE COMMUNITY THAT IT IS CALLED UPON TO PARTICIPATE IN THE AGREEMENT. THAT SPECIAL POSITION CANNOT THEREFORE AFFECT THE SOLUTION OF THE PROBLEM RELATING TO THE DEMARCATION OF SPHERES OF COMPETENCE WITHIN THE COMMUNITY.