|Anthony ARNULL, Catherine BARNARD, Michael DOUGAN and Eleanor SPAVENTA (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood, Oxford, Hart Publishing, 2011, 435-457
|This chapter discusses the legal effects of a seemingly paradoxical situation: an international agreement falls within the exclusive competence of the European Union, and yet the Member States are parties to the agreement and the Union is not. This situation emphasises the importance of the role the Member States continue to play within the framework of EU foreign policy, even in fields where the EU has apparently displaced the Member States completely. It serves as a reminder that the EU, as an international actor, operates as a complex organization – a constitutional order – which continues to include the Member States. The members of this constitutional order of states operate both in their own right as international actors, and as EU Member States, with the obligations which flow from that status. While not common, the participation of the Member States in international agreements falling within exclusive Union competence is not as unusual as we might imagine and it gives rise to a number of interesting legal questions as to the status of the agreement, if any, in Union law and the Member States’ obligations under Union law arising as a consequence. The legal questions explored in the chapter arise out of the fact that the international agreements in the above examples are not formally a ‘Union agreement’ within the scope of Articles 216 and 218 TFEU and thus the matters regulated by those provisions, including the binding nature of the agreement as far as the Union is concerned, and its place in the Union legal order, are not expressly resolved. To what extent can the provisions of Articles 216 and 218 TFEU apply by analogy? In what follows we will look at the negotiation and then conclusion of the agreement, the status of the agreement in Union law and the jurisdiction of the Court of Justice, and the obligations that Union law imposes on the Member States in these circumstances.