TAMARA ĆAPETA Powers of the EU in international relations

Legal personality Article 47 TEU : “The Union shall have legal personality.” EU has legal personality since Lisbon Treaty Untill Lisbona, European Communities had legal personality Legal personality means, among other, that EU is legal subject in international relations

Principle of conferral EU has powers to regulate only those relations for which Member States have transferred a competence Applicable also in the field of external powers To enable the EU to conclude an international agreement, Treaty needs to contain a legal basis which authorizes EU to do so If the legal basis does no exist, an international agreement concluded by the EU is legally invalid

Principle of conferral in international relations Into which types of international relations can EU participate?  Those for which the Treaty expressly grants external powers – express powers  Those in which there is no express power in the external relations, but there is a power to regulate this area internally– implied powers Wide EU powers in international relations are largely the result of case-law

Express external powers Treaty contains no general legal basis which enables the EU to participate in international relations Sector-by-sector approach: external aspect today mentioned in different ways in different policy areas Lisbon Treaty has increased a number of such areas: CCP and common customs tariff, agriculture, movement of capital and payments, transport, monetary policy, education and vocational training, culture, public health, trans-European networks, research and technological development, cooperation in the field of environmental protection, development cooperation, humanitarian aid, economic and financial cooperation with third countries, association agreements

Implied external powers Developed through the case-law, starting with the case ERTA (1971.) 2 separate questions:  Has the EU external power in certain field?  Is this power exclusive or shared?

Does the EU possess implied power ? Case ERTA: Existence of external power linked to the adoption of internal measures Later case-law: - EU has external power whenever there is an internal power, if if the internal power was not yet exercised (no internal measures were yet adopted)

Exclusive or shared implicit power? ERTA – when there exist internal implementing measures, the external power is exclusive Later case-law– additional conditions for the power to become exclusive Case-law since the mid-1990s: presumption of shared powers

Exclusive external powers in Lisbon Treaty Article 3/2 TFEU: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.”

Consequences of the EU exclusive powers If EU has exclusive power, Member States loose the power to conclude international agreement in that area Only EU can conclude such agreement If external power is not exclusive, but shared, both the EU and the Member States, respectively, may conclude an international agreement in that area

Political importance of shared powers Justification for conclusion of mixed agreements Mixed Agreements: international agreements in which both EU and its Member States appear as a party on the same side of the agreement Example: our SAA For entry into force of such agreements, EU and each Member State has to ratify them Important for states in order to retain international visibility and control international legal comitztments

Mixed Agreements EU must conclude an agreement together with its Member States if such agreement relates also to issues for which EU lacks competence EU may conclude an agreement together with its Member States if it has competence in the area which agreement covers, but such competence is shared with its Member States. EU may sign such agreements without the participation of Member States as parties

Procedure for signing international agreements Article 218 TFEU Actors:  Commission or High Representative: initiate and negotiate  Council: gives negotiating mandate, signs and ratifies internally (by unanimity or qualified majority)  European Parliament – consent or consultation