Member States as Trustees of the Community Interest: Participating in International Agreements on Behalf of the European Community

Abstract

This paper discusses the legal effects of a seemingly paradoxical situation: an international agreement falls at least in part within the exclusive competence of the Community, and yet the Member States are parties to the agreement and the Community is not. This situation, while not common, is not as unusual as we might imagine. It may occur for several reasons: it may be decided that it is in the Community interest, for political or other reasons, that the Member States rather than the Community should participate; it may be the case that only States, and not regional economic integration organisations (REIOs) such as the EC, are entitled to participate; it may be that when the agreement was originally concluded the Member States were competent - since then, however, EC exclusivity has ‘supervened’. In cases such as these the European Court of Justice has taken the view that the Member States party to the agreement are acting on behalf of the Community, and in its interests. The legal questions explored in this paper arise out of the fact that the international agreement is not formally a ‘Community agreement’ within the scope of Article 300 EC and thus the matters regulated by that provision, including the binding nature of the agreement as far as the Community is concerned, and its place in the Community legal order, are not expressly resolved. Although these agreements are in some senses anomalous, and their position in the Community legal order may be ambiguous, they also illustrate the constraints under which the Member States – although fully sovereign States – may operate as a result of their Community obligations, the way in which the international identity of the Union may be represented by the Member States, and the accommodations possible between the demands of the Community legal order and the practical exigencies of international treaty-making.