Instruments of providing conformity and unanimity of ... Public Hearing_Irmi… · Short overview:...
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www.skslegal.pl Instruments of providing conformity and unanimity of actions taken by the EU and the Member States in the international organizations Dr. Mateusz Irmiński advocate Brussels, June 2016
Transcript of Instruments of providing conformity and unanimity of ... Public Hearing_Irmi… · Short overview:...
www.skslegal.pl
Instruments of providing
conformity and unanimity of
actions taken by the EU and the
Member States in the
international organizations
Dr. Mateusz Irmiński
advocate
Brussels, June 2016
Plan of the presentation
Short overview:
1. EU and its Member States and their ius tractatuum – models of EU/Member States
participation in the IGOs
2. Instruments of common policies within the IGOs: voting rights / subsequent
convention in the framework of the IGOs
3. Subordination clauses
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• Shared vs. exclusive external competence of the EU
- art. 3 TFEU
Two different models:
1. EU being founding member of the IGO
2. EU acceding later (after its Member States)
• Mixed agreements (including mixed agreements establishing an IGO)
• International agreement concluded „in behalf” of the Member States (example: AETR
case) – common position of Member States
European Union and its Member States in the internationalorganizations (IGOs)
Legal instruments of implementing policies in the IGOs
1. Adoption of resolutions of IGOs within IGO’s bodies or as COPs:
Voting rights:
- separate (but one policy)
- joint voting right of the EU and its Member States
1. Conclusion of new international agreement under auspices of the IGO
2. Mixture of above both actions (example: Paris Agreement of 2015 under UNFCCC of
21 COP in Paris)
Resolutions and decisions of IGOs – voting rights of the EU and of the Member States
Two basic models of performing voting rights of the EU and of the Member States:
1. Separate voting:
1.1 Coordinated policies
1.2 Non-coordinated policies
2. Joint voting (performing voting rights by the EU „in behalf” of the Member States
being at the same time Contracting Parties to the treaty establishing that IGO).
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Separate voting: coordination of policies
• Mixed agreements: no exclusive external competence of the EU.
• In case of mixed agreements, coordination of policies within the IGO possible
• In case of external exclusive competence and Member States being Contracting Parties,
exclusive EU action admissible – need for abstaining by the Member States from voting or
– if no „joint voting” clause included – need for coordination of policies for unanimous
voting.
Voting of the EU in behalf of the Member States – part I
• Clauses allowing the REIOs (e.g. the EU) to perform voting rights „in behalf” of the Member
States being also members of the same IGO.
• Main aim: avoiding „another” voice of the EU to be included; allows the EU to perform voting
rights unanimously (in fact, no co-ordinated policy needed).
• Example:
[Art. IX(1) of the Agreement establishing the World Trade Organization] „The WTO shall
continue the practice of decision-making by consensus followed under GATT 1947.1 Except as otherwise provided,
where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. At meetings of the
Ministerial Conference and the General Council, each Member of the WTO shall have one vote. Where the
European Communities exercise their right to vote, they shall have a number of votes equal to the number of their
member States which are Members of the WTO. Decisions of the Ministerial Conference and the General Council
shall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in the relevant
Multilateral Trade Agreement.”
• Many other examples, mainly in the environmental law, as well as e.g. in the UNFCCC.
Voting of the EU in behalf of the Member States – part II
• It is a common practice that treaties with clauses providing „joint performance” of
voting rights by the REIO also provide that casting a vote of at least one
Contracting Party being member state of the REIO automatically precludes the
REIO from voting (e.g.: Art. 36(7) of the ECT)
• In some cases the EU (or formerly – EEC) is expressly entitled to cast a number of
votes equal to the number of its Member States being Contracting Parties (e.g. Art.
23 of the Helsinki Convention on the Protection of the Maritime
Environment of the Baltic Sea of 1992)
• It is also possible to limit the EU’s competence to vote in some matters reserved
exclusively for the Member States (e.g. Art. 38 § 2 and 3 COTIF)
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Concluding international agreement within framework of the IGO
• One of the instruments of policy-implementing in the IGO; however, general rules
of the law of the treaties (see: Vienna Convention) apply;
• Need for ratification – when joint participation of the EU and Member States
occur: risk of non-ratification by Member States;
• Risk of submitting declarations or reservations to international agreements (e.g.
Polish declaration to the Paris Agreement 2015 to the UNFCCC)
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Examples of problems with policy implementation by concluding international agreements within framework of the IGO
International agreements within framework of IGOs based on mixed agreements:
• Ratification of the Paris Agreement under the Paris 2015 COP 21 of the UNFCCC
(United Nations Framework Convention on Climate Change)
• Paris Agreement adopted by decision 1/CP.21 of December 2015 – requires
ratification by Member States (all Member States of the EU are members of COP
FCCC)
Alternative method: subordination clauses
• Allows the REIOs (like the EU) to conclude the treaty only after accession of all or
a certain number of its member states.
• Instrument of providing conformity of actions of the EU and Member States within
the framework of a particular international agreement.
• Does not necessarily have to be included in the international treaty (incl. ones
establishing a particular IGO).
• May be a useful mechanism of assuring that the EU „represents” the actual position
of states being signatories to that treaty.
• By concluding a treaty with subordination clause the EU „subordinates” the legal
order of the Member States – the EU obligates herself to establish a law consistent
with that treaty.
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Subordination clauses – examples – part I
Regional Fisheries Management Organizations (RFMOs)
- only part of them are established by mixed agreements;
- EU is member to a couple of RFMOs; usually only EU, without Member States (however,
notably e.g. members to the GFCM are also Bulgaria, Cyprus, France, Greece, Italy, Malta,
Romania, Spain and the UK)
- Usually, when EU Member States remain members of a RFMO, they submit a declaration on
territorial application limited to overseas territories of those Member States (e.g. WCPFC: UK
and France are members, limiting their membership to Pitcairn (UK) and to Wallis & Futuna,
New Caledonia and French Polinesia (France); another example is ICCAT:
[Art. XIV(6) ICCAT Convention] „when an organization referred to in paragraph 4
[REIO] becomes a Contracting Party to this Convention, the member states of that organization
and those which adhere to it in the future shall cease to be parties to the Convention; they shall transmit
a written notification to this effect to the Director-General of the Food and Agriculture Organization
of the United Nations”
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Subordination clauses – examples – part II
Other examples of subordination clauses include for instance the following:
1) Art. 2 of the Annex IX to UNCLOS
2) Art. 38 COTIF
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Subordination clauses – problems
• Is the subordination necessary in order to obligate the Member State to leave the
REIO (such as the RFMOs)?
- example of Croatia and the Act on conditions of accession of Croatia to the
EU (obligation to quit the RFMOs)
• My thesis: subordination clause may be treated as alternative way of implementing
Art. 351 TFEU
• Complex (conditional) subordinations clauses: e.g. Art. XXIX CCAMLR
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Conclusions
• Role of the European Parliament in a procedure of conclusion of international
agreements – Art. 218 (6) and (11) TFEU
• Significant role of the Member States within their competence
• Importance of treaty mechanisms
• „Soft law” regarding introduction of common policies within the IGOs
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