Wednesday, 23 January 2008

EU Treaty of Lisbon: International agreements

International agreements are important instruments to further the objectives of the European Union in its external relations. This time we look at the basic provision in the Treaty of Lisbon relating to international agreements in the area of the common foreign and security policy (CFSP), in comparison with the corresponding provisions in the existing Treaty on European Union (TEU), the draft Constitution and the Constitutional Treaty. We briefly refer to the relevant procedural articles in the new Treaty on the Functioning of the European Union (TFEU).

The CFSP provisions, including those on international agreements, belong to the sphere of intergovernmental cooperation, as opposed to certain supranational ‘Community’ powers.

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The intergovernmental conference (IGC 2007) concluded the following in the Treaty of Lisbon (OJ 17.12.2007 C 306/30):

41) The text of Article 22 shall become Article 15a; it shall be amended as set out above in point 33.

42) The text of Article 23 shall become Article 15b; it shall be amended as set out above in point 34.

43) Article 24 shall be replaced by the following:

Article 24 TEU

The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.

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In the existing consolidated Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321 E/20 and 21) Article 24 contains both the principles and the procedures relating to international agreements under Title V, the common foreign and security policy (CFSP), and Title VI, Police and judicial cooperation in criminal matters.

Article 24

1. When it is necessary to conclude an agreement with one or more States or international
organisations in implementation of this title, the Council may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be
concluded by the Council on a recommendation from the Presidency.

2. The Council shall act unanimously when the agreement covers an issue for which unanimity
is required for the adoption of internal decisions.

3. When the agreement is envisaged in order to implement a joint action or common position,
the Council shall act by a qualified majority in accordance with Article 23(2).

4. The provisions of this Article shall also apply to matters falling under Title VI. When the
agreement covers an issue for which a qualified majority is required for the adoption of internal
decisions or measures, the Council shall act by a qualified majority in accordance with Article 34
(3).

5. No agreement shall be binding on a Member State whose representative in the Council states
that it has to comply with the requirements of its own constitutional procedure; the other
members of the Council may agree that the agreement shall nevertheless apply provisionally.

6. Agreements concluded under the conditions set out by this Article shall be binding on the
institutions of the Union.

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In addition, we take note of the existing Treaty establishing the European Community (TEC) Article 300, which concerns the conclusion of international agreements by the European Community (EC).

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The Convention proposed the following Article III-2004 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C169/67):

Article III-204

The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227.

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In the Treaty establishing a Constitution for Europe actually signed by the member states, the corresponding Article was III-303 (OJ 16.12.2004 C 310/137):

Article III-303

The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.

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We see that the Lisbon Treaty Article 24 TEU has the same wording as the Constitutional Treaty Article III-303. While the likeness of the Reform Treaty and the Constitutional Treaty is evident in many instances, the essential continuity between many of the provisions existing Treaties and the Lisbon Treaty should not be forgotten.

The scope of the proposed Article 24 TEU is narrower, since it refers only to areas covered in Chapter 2, i.e. the common foreign and security policy (CFSP), which remains in the intergovernmental domain.

In the new Article 24 TEU, there are no procedural rules and no reference to those provisions. We find them in the new Treaty on the functioning of the European Union (TFEU), Part V External action by the Union, Title V International agreements, especially Article 188n TFEU, with provisions on the opening of negotiations, the issuing of directives to the negotiator and the conclusion of the agreement.

Since the European Community (EC), which has legal personality, is merged into the European Union (EU), on which legal personality is conferred, there is no need for separate provisions on the account of different entities. But the competences of the intergovernmental Council and the ‘communitarian’ Commission remain distinct.

When the agreements relate exclusively to the CFSP, the Council adopts the decision concluding the agreement. In other cases the European Parliament is only consulted, if the consent of the EP is not expressly provided for, Article 188n(6) TFEU.

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Next time we look at the Political and Security Committee (PSC).


Ralf Grahn