Ch. 27. THE EXTERNAL RELATIONS POWERS OF THE EUROPEAN COMMUNITY

A. The EEC Treaty Provisions on External Relations

1. Express Grants of External Relations Power

• Article 133 (ex 113)
• common commercial policy
• procedure for international agreements (para. 3)
• Commission recommends negotiations
• Council authorizes negotiations by Commission
• Commission recommends agreement
• Council decides by qualified majority
• Article 302 (ex 229)
Commission responsible for relations with UN, GATT, all other int’l orgs. – check out website:http://europa.eu.int/comm/world/dgs_en.htm: now 4 Commissioners and 6 DGs
• Article 310 (ex 238) : Association Agreements
• purposes of such agreements
• reciprocal rights and duties
• common action
• special procedures
• e.g., new agreement with Algeria signed 4/22/02
• negotiation procedure: see also Art 300(1) (ex 228(1))
• proposal for negotiations by Comm’n,
• authorization by unanimous C’cil
• conclusion: see below

2. Approval of International Agreements and the Role of the European Parliament

• Article 300 (ex 228)
• default procedure for conclusion (paras. 2,3)
• Commission proposes
• Council acts by qualified majority, after
• consultation with Parliament
• exceptions
• Council must act unanimously:
• in a field in which unanimity would be required for internal rules
• association agreements governed by Art. 310
• Parliament must assent to (para. 3, subpara 2):
• Association agreements governed by Art. 310
• agreements establishing a specific institutional framework by organizing cooperative procedures
• agreements having important budgetary implication for the EC
• agreements entailing amendment of an act adopted under co-decision procedure
• PARLIAMENT V. COUNCIL, p. 1026 (EC/Mauritania fisheries agreement)(1999).  5-year fisheries agreement with Mauritania, involving annual payments by EC to M.
• what factors are to be taken into account in determining whether an agreement has “important budgetary implications”?
• Parliament claimed that the exceptional assent procedure applied, Council claimed the default consultation procedure applied.  Who won, and why?
 
B. The Court of Justice and the Community’s Powers in External Relations
1.Implied Powers: the ERTA case

• COMMISSION V. COUNCIL, p. 1028 (1971).  Who has the right – Comm’n for EC, or MS – to negotiate the ERTA with non-Member states, absent express authority to anyone?
• what is the significance of the Community’s “legal personality” (art. 281 (ex 210))?
• does Community have power to make a treaty, whenever it has power to act internally?
• when Council exercises power to make common rules for all MS, can it authorize a treaty?  What MS duties does this trigger?
• take appropriate action to implement
• refrain from any action that would undermine
• How would the AG have decided the case?
 
2.  The Scope of Explicit Powers: the Rubber Agreement Opinion
• INTERNATIONAL AGREEMENT ON NATURAL RUBBER, p. 1037 (1979).  Opinion of the Court under ex art. 228 on the competence of the Community to enter into the titular agreement.
• what is it about the overall structure of the IANR agreement that sets it apart from other international trade agreements?
• why is it “not possible” to interpret ex art. 113 so as to exclude such agreements?
• is the listing of subject-matters in the article an exclusive one?
• are there interests among the MS which correspond to those of natural rubber producers, such that in other sectors the EC might itself seek an agreement like this one?
• are “economic policy” (original art. 6, ex arts. 102a ff., ex art. 145) and “commercial policy” (ex arts. 110 ff.) mutually exclusive subjects?  What happened to the apparent assumption of the original treaty, that the EEC would deal only with the latter directly, and seek only coordination of MS policies on the former?
• if the IANR can properly qualify as one implementing common commercial policy, what other issues of Community competence does it present?
• if a proposed international agreement presents both issues over which the Community is exclusively competent and issues over which the MS are exclusively competent, is there a problem with proceeding to negotiate along both tracks, with EC and MS participating?