The Lisbon Treaty improves the presentation of the European Union’s (European Community’s) powers to conclude international agreements (treaties), but first we take a look at the existing treaties.
The current divide between the European Community, with legal personality (Article 281 TEC), and the European Union, without, complicates the conclusion of international agreements and it is reflected in the existing main treaty provisions. (Cf. the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E.)
Article 300 of the Treaty establishing the European Community (TEC) does not present a comprehensive view of the treaty making powers of the EC, but refers generally to the situations “Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, …”. It then sets out the procedures for concluding treaties.
In addition, there are agreements with a more general scope and provisions related to a specific policy area or even a determined issue:
Article 310 TEC provides for the conclusion of association agreements with states or international organisations.
In the area of the common commercial policy (including customs tariffs and trade), the European Community exercises exclusive competence, with Article 133 TEC providing for international agreements to be concluded.
Article 111 TEC concerns the conclusion of formal agreements on an exchange-rate system for the ecu (nowadays euro) in relation to non-Community currencies.
Article 174 TEC concerns international agreements in the environmental area.
International agreements in the area of development cooperation are provided for by Article 180 TEC.
Agreements within the sphere of economic, financial and technical cooperation with third countries or international organisations are foreseen by Article 181a TEC, which also mentions the association agreements and the agreements to be concluded with membership candidates.
The flexibility clause Article 308 TEC has been used to fill voids.
Second and third pillar
Article 24 of the Treaty on European Union (TEU) refers to the procedure to conclude international agreements in implementation of the common foreign and security policy (CFSP; Title V) and police and judicial cooperation in criminal matters (Title VI; also Article 38 TEU).
Accession treaties are an example of intergovernmental agreements, concluded between the acceding state and the existing member states (Article 50 TEU).
The current patchwork of treaty provisions is in need of clarification and reform. Operating on the international scene is complicated by the EC and EU split. The limits of EC and member state powers are far from clear in the light of the treaties.
It has fallen on the ECJ to give set out the respective external competences.