Self-Control Exercise on Conclusion of International Agreements II
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The general procedure for concluding international agreements of the EU is
regulated by Article 218 TFEU, foreseeing the following procedure: The
authorizes the opening of negotiations, adopts negotiating directives,
authorizes the signing of agreements and concludes the agreements. At the same
time, the Council may address
to the negotiator, and also designate
a special committee to be consulted in the negotiations. On a proposal by the
negotiator, the
adopts a decision that authorizes the signing of the
agreement and, if necessary, its provisional application before the agreement becomes
valid. On a proposal by the negotiator, the
also adopts a decision
concluding the agreement. The Council adopts the decision concluding the
agreement after it has obtained the European
’s consent in the case
of association agreements; agreement on the EU’s accession to the ECHR; agreements
establishing a specific institutional framework by organizing cooperation
procedures; agreements with important
implications for the EU; agreements
covering fields to which either the ordinary legislative procedure applies, or
the
legislative procedure where consent by the European Parliament is
required. In other cases, the Council adopts a decision after consulting the
European
, or if the European Parliament does not give its opinion
within a time-limit. As a rule, the Council acts by a
majority vote throughout the procedure. In cases where an agreement covers a field for
which unanimity is required for the adoption of a EU act, as well as for
association agreements and the agreements with the states which are candidates
for accession, the
acts unanimously. The Council also acts unanimously
for concluding the agreement on accession of the EU to the ECHR, the relevant decision
enters into force after it has been approved by the Member States in accordance
with their relevant constitutional requirements. In the case of an agreement
exclusively or principally related to the common foreign and
policy
area (Article 37 TEU), the
, or the High Representative of the EU for Foreign Affairs
and Security Policy, submit recommendations to the Council, the latter then
adopts a decision authorizing the opening of negotiations and - depending on
the subject of the agreement - nominates the EU negotiator or the head of the
EU’s negotiating team.
The international agreements in the area of the EU common
policy are regulated by Article 207 TFEU, stating that Article 218 is applied
in agreements with common commercial policy as a general regulation, and
Article 207 as a special regulation. The latter Article foresees the following
procedure – the Commission makes recommendations to the
, which authorizes
it to open the necessary negotiations. The Council and the Commission are
responsible for ensuring that the agreements negotiated are compatible with the
EU’s
policies and norms. Such negotiations are conducted by the
Commission in consultation with a special committee appointed by the
to
assist the Commission in this task. The
acts here under the
supervision of the European Parliament, reporting regularly to the special
committee and to the European Parliament on the progress of negotiations. The
Council acts by a
majority for the negotiation and conclusion of the
referred agreements, whereas the Council acts unanimously for the negotiation
and conclusion of the agreements in the fields of trade in services, the
commercial aspects of intellectual property, and foreign direct investment,
where such agreements include provisions for which unanimity is required for
the adoption of internal rules. Thus, the EU’s international agreements related
to common
policy, are also divided according to internal procedures
and subject-matter into the trade in cultural and audiovisual services
agreements, trade in social, education and health services agreements, and
agreements in the field of
.
In case of doubt whether a
planned agreement is compatible with the basic treaties, a Member State, the
European Parliament, the
or the Commission may seek the opinion of the
CJEU on the compatibility
of the agreement with the basic treaties. If the CJEU is of the opinion that
the agreement is not compatible with the basic treaties, the designed agreement
cannot enter into
unless it is amended or the basic treaties have been
revised. This has, for example, happened with regard to the accession of the
European Community to the ECHR, in which case the European
Court of Justice (as it was called at the time) gave opinion 2/94 on accession
by the Community to the ECHR (1996, ECJ I-1759), where the Court of
Justice stated that since the basic treaties had given neither direct nor
powers to the EC for enacting rules concerning human rights or conclusion
of international human rights treaties, accession of the EC to the ECHR would have
meant institutional changes of such substantial significance that the accession
would have been impossible without a Treaty
.