Controversies on Article

Since the establishment of the European Union (hereinafter ‘EU’) with the Maastricht Treaty in 1993, the accession to it, had been perceived as the cornerstone for a state into a new national economic and political development. The crucial premise of the EU is the incorporation of the EU legal order in its entirety into the state national legal system over which the EU has precedence, in other words, limiting its sovereignty in favour of firming up the integration in the EU. Nonetheless this constitute a complicated issue, usually of a great importance, evolve at the accession of a state to the EU. This regards the relationship of a member state with third countries, in term of binding nature of existing agreements. Membership to the EU, does not in itself, an imposing stature, to force a recently joined member state to act, in breach of pre-accession international agreements, against a third countries, nor let the parties to the agreements to operate on the basis of this rule forever leading to a disparate interloping, endangering the basic essence of the EU, that is the Supremacy of EU Law. The following paragraph will investigate the role and effects of Article 351 of the Treaty on the Functioning of the EU (hereinafter ‘TFEU’). This article has been purposely implemented with the aim to deal with these dichotomies, that is ‘to make it clear, in accordance with the principle of international law, that application of the EC treaty does not affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform its obligation thereunder.’[1] This paper will examine the controversies of the Article 351 TFEU, elaborating on the conclusion date of the international agreements, the effect of future amendments to international agreements, the potential collisions, and above all, the supremacy of EU law. The prohibition of international agreements established between Member States, situations whereby third countries are favoured in the interpretation of the provisions, competences of national courts and the Court of Justice of the EU (hereinafter ‘CJEU’) in interpreting international agreements. As a final point, analysing paragraph 3 of Article 351 of the TFEU, concerning obligation to renegotiate or terminate international agreements.

2. Scrutinising of Article 351 TFEU

Article 351 TFEU[2] : The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude. In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under the Treaties by each Member State form an integral part of the establishment of the Union and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States. The first part of the article allow Member States to respect their commitments under international agreements towards non-EU states, even if the later conflicts totally with EU principles. The second part enforce a duty on the acceding state, to deal with the dichotomies, and also actively impose on other Member State to support where necessary achieving the intended aim, that is the consistency in the EU. The last part prevents limits the possible benefits through bilateral treaties to EU non-member state. On a general basis, the criteria for an international agreement to fall within the concept of Article 351 TFEU seems clear. The treaty, implicating international rights and obligations, must have been concluded between a Member State and a third countries, before the Member State accession to the EU. In Kadi v Council and Commission[3], the Court has opted to narrow the interpretation, adding a forth criterion, prevailing the fundamental principle of EU Law. Under paragraph one of Article 351 TFEU, to simplify the ideology behind the mention date, that is 1 January 1958, is not as easy as it seems. The main ambiguous points is about the wording surrounding the date itself. We are here to deal with either we should take it literally or the intended principle behind. There is this approach that will consider concluding an agreement as the date of signature, while others will consider the act of ratification as the influencing point. Nonetheless, the Court has neither in Commission v Italy nor in Commission v Belgium, when they had the opportunity to clarify, took the opportunity to do it. In Commission v Italy, the court dealt with Italy signing the GATT agreement in 1956 and ratified it in 1958[4] and in Commission v Belgium, a treaty between Zaire and Belgium, applied de facto from its signature. Thus the question of ratification as a condition remains unanswered. Nonetheless, on a logical side, ratification of an international agreement is the clear break that demonstrate the participative factor of a state rather than just an intention by signing. Article 351 TFEU is to enable state to assent to the EU without to breach transnational duties. Thus it is rational that mutual revision to international agreements will enable to discontinue application of article 351 TFEU, so that the EU can enforce its total supreme right over Member State. According to the Court in Commission v Belgium, “…Upon amendments made later, the Member states are prevented not only from contracting new international commitments but also from maintaining such commitments in force if they infringe community law.’[5] The CJEU also confirmed that it might be possible for agreement with subsequent amendments due to collapsing state like the Federal Republic of Yugoslavia, Czech Republic and others, to fall under the protection of Article 35 TFEU should the Court establish that the parties intended to follow the principle of the continuity of treaties.[6] After accession to the EU, according to the CJEU, Article 351 TFEU is not applicable to international agreement ratified, concluded by Member state even where EU had no competence in the field at the time, when the Member state ratified it. In clear, the agreement should be rendered compatible toward EU law or eliminated. Every Member state has a general duty of active loyalty towards the EU, to refrain from any activity that might endangered the uniformity goal of the EU, under Article 4 of the Treaty of European Union (Hereinafter, ‘TEU’). There might be some opportunities whereby the EU has no actual competences in a required field, but can be such in future, so, in case a Member state ratified such agreement base on the absence of competence of EU at that particular moment, cannot in the future when the EU assent to such competence to try to be under the protection of Article 351 TFEU. Therefore the court can rightfully conclude that such agreement is in breach of the EU law, and enforce the Member state to take appropriate measures to eliminate incompatibilities, and on failing such, take appropriate EU law breach measures against the Member State. Article 351 TFEU, according to case law, though not very descriptive in the provision, is applicable to only between Member state and a third countries and not intra-EU countries. More often, some treaties contain such provisions that impose such measure to extend privileges offered to intra-EU relationship to third parties of a treaties. These are known as ‘most favoured nation clauses’. Thus cause problems by extending EU privileges to Non-EU states. Thus the third paragraph of Article 351 TFEU is aimed at limiting the possibility of extending benefits of the EU to non-EU states through bilateral treaties of Member states.

The Courts’ Competence in dealing with Article 351 TFEU.

Under Article 19 TEU, the CJEU do not have the specific competence to interpret national law or international law, however, he court has on several occasion try to interpret both, based on the duty arise under Article 4 TEU, that is the loyalty to the EU. Following the Von Colson principle, it is an obligation of the national court to interpret their national law ‘in the light of the wording and purpose of the EU law.’ Thus this require the Member state to take all appropriate and reasonable measure to fulfil all obligations and rights arising from the EU treaties. However, such differs from international agreements, the court in BudA„•jovickA½ v Budvar ‘It follows that the national court must ascertain whether a possible incompatibility between the Treaty and the bilateral convention can be avoided by interpreting that convention, to the extent possible and in compliance with international law, in such a way that it is consistent with Community law.’[7] Concluding on the competence of the national court, the later has a duty to seek out the direction of the EU law in its pronouncement on the significance and result of an international treaty is apparent. Interpretation of International treaties are codified in Article 31 of the Vienna Convention on the Law of Treaties, according to which ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. During interpretation, Courts have a duty to interpret the agreements in reliance to fundamental rights being observed and respected. Measures that are incompatible with the convention of human fundamental rights are unacceptable to the community.

INCOMPATIBILITIES.

In case of incompatibilities between international agreements and EU law, Member state are obliged to take all reasonable steps to eliminate incompatibilities under Article 351 (2) TFEU, or the most extreme position to terminate an international agreement, in accordance to the Vienna Convention. Member States are under a legal duty to be at mutual assistance and common attitude towards each other to deal with such incompatibilities. The CJEU has indicated two clear structure to follow, as describe below.

1. The first step is that the Member State can use the diplomatic scenario to renegotiate new agreements terms rendering the agreement compatible with EU law. Nonetheless, even if the parties has done reasonably enough in term of negotiation but due to other political scenario, has not been able to achieve the aim to erase incompatibilities, the CJEU has well been clear enough to accentuate that political situation of a Member State ‘cannot justify a continuing failure on the part of a Member State to fulfil its obligations under the Treaty’[8]
2. The second scenario is that is although following several negotiation, no agreement had been reach, the whole agreement should be rejected. The purpose of such, is to avoid future breach of international law, and protecting both EU and third countries.

One more major point to clarify that several state can claim that they have taken sufficient proportionate steps towards making their agreements compatible but nonetheless unfruitful. However, in Commission v Portugal, the CJEU established that even though the Member State has taken proportionate measures, they cannot justify their failure base on the concept of proportionality. However the balance of proportionality is well observe by the EU in preserving a stability between foreign-policy and union interests. Article 351 (1) TFEU safeguards the benefits of the Member States contrary to Article 351 (2) TFEU preserve that of the EU. The Article allow, at the Member State discretion to take the require measures base on their own capability, to condense unsafe agreements to compatible agreements with EU law. A Member state cannot speculate that his rights are not protected as the Union is offering sufficient steps to protect his first. Also, concerning the elimination of incompatibilities, if during the accession, the Union is informed of a conflicting obligation under an international agreement, the latter is introduced in the act of accession so as to compel the state to withdraw from such treaties or obligations, for example a pulling out an agreement concerning pollution, that the EU is already a signing party to. Also, state are advice to eliminate incompatibilities as earliest as possible before the accession or nearest post-accession date. Most certainly the said Member state will be granted a deadline to eliminate an inconsistent agreement by means of a Regulation.

---

[1] Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649 [2] Article 351 TFEU (ex Article 307 EC) [3] Case T-315/01 Kadi v Council and Commission [2005] ECR II-3649 [4] Case 10/61 Commission v Italy [1961] ECR [5] Case 471/98 Commission v Belgium [2002] ECR I-9681 [6] Case C-216/01 BudA„•jovickA½ Budvar [2003] ECR 2787. [7] Case C-216/01, BudA„•jovickA½ v Budvar [2001] para. 169. [8] Case C-170/98, Commission v. Belgium [1998] paras 37, 42

Cite this page