Who Can Make Treaties? The European Union
Title: Who Can Make Treaties? The European Union
Author: CREMONA, Marise
Citation: Duncan B. HOLLIS (ed.), The Oxford Guide to Treaties, Oxford, Oxford University Press, 2012, 93-124
The European Union is unique as a treaty-making actor. It is one of the most prolific makers of treaties, and although it is certainly true that treaties in general have gained in importance as a source of law over the last century, the EU’s use of the treaty as a key component of its foreign policy is striking. The EU uses treaties to structure and define its relations with third countries, to devise different models of agreement for groups of partners, to promote its vision of ‘an international system based on stronger multilateral cooperation and good global governance’ (Art 21(2) TEU) and engages actively in the construction of new multilateral conventions and campaigns for their ratification. According to the EU’s treaty office, the EU is currently party to 778 bilateral and 240 multilateral treaties. Despite an initially relatively narrow scope of activity, the EU now engages in treaty-making over a very wide field beyond its core competence for trade agreements, ranging from private international law to air services, from climate change to organized crime. The EU institutions often rightly stress the special nature of the EU as an international actor and seek specific solutions for EU participation in treaties, and the EU’s treaty partners certainly do need to appreciate its specificities. However, the EU works within the same international legal framework as its treaty partners and is constrained not only by its own constitutional requirements but by what its partners will accept and expect. Although the focus of this chapter is therefore on the perspective of EU law, it does address the ways in which international treaty law and practice has—or has not—accommodated the EU. The first section of the chapter deals with the EU’s treaty-making capacity, from the perspective first of EU law, and then of international treaty practice. In determining the rules which govern EU treaty-making, we need to consider first the principle of conferral, express and implied powers, and the importance of identifying a legal basis in the EU Treaties, then treaty-making procedure within EU law, and the role of the CJEU in reviewing the EU’s powers. We next examine the ways in which international treaty-making practice has accommodated EU participation in bilateral and, especially, in multilateral agreements. The chapter’s second section discusses the legal effects of treaties concluded by the EU, first as regards the EU legal order, including their enforcement and interpretation by the CJEU and the legal effects of mixed agreements. A discussion of the impact of EU treaty-making on the powers of the Member States follows: through the doctrines of exclusivity and pre-emption, the impact of EU law on treaties concluded by the Member States, and finally EU treaty-making from the perspective of international responsibility.
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