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Opinion 1/94, Community Competence to Conclude Certain International Agreements

Published online by Cambridge University Press:  27 February 2017

John R. Schmertz
John R. Schmertz*
Affiliation:
Georgetown UniversityLaw Center
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Type
International Decisions
Information
American Journal of International Law , Volume 89 , Issue 4 , October 1995 , pp. 772 - 788
Copyright
Copyright © American Society of International Law 1995

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References

1 More than 120 countries took part in the Geneva negotiations of the Uruguay Round during the period 1986–1994. Some have preliminarily estimated that this Round will affect trade amounting to $3.7 trillion. See JOHN H. JACKSON, WILLIAM J. DAVEY & ALAN O. SYKES, JR., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS 314 (1995) [hereinafter JACKSON ET AL.].

2 “For example,” Professor Jackson stated, “a ‘new GATT 1994’ is created and thus countries effectively withdraw from the old GATT and become members of the new GATT. This procedure avoids the constraints of the amending clause of the old GATT which might make it quite difficult to bring the Uruguay Round into legal force.” John H.Jackson, Testimony before the Senate Comm. on Finance (Mar. 23, 1994), quoted in id. at 305.

3 “Except as otherwise provided under this Agreement or the Multilateral Trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodies established in the framework of GATT 1947.” Agreement Establishing the World Trade Organization, Dec. 15, 1993, Art. XVT(l), reprinted in 33 ILM 15 (1994) [hereinafter WTO Agreement].

4 See id., Art. VIII.

5 Although the preferred method of decision making remains that of consensus, in its absence votes must be taken. “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.” Id., Art. IX(1).

6 Id., Art. IV.

7 “Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” Id., Art. XVI(4).

8 In 1992 Community trade amounted to 39% of world merchandise trade, about 60% of which was internal. See JACKSON ET AL., supra note 1, at 185.

9 See note 5 supra. As of January 1, 1995, Austria, Finland and Sweden joined the existing 12-member Community.

10 See JACKSON ET AL., supra note 1, at 342–43.

11 Article 16.4 of Annex 2, Understanding on Rules and Procedures Governing the Settlement of Disputes, Dec. 15, 1993, reprinted in 33 ILM 112, provides in part that “[w]ithin sixty days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless [a party appeals] or the DSB decides by consensus not to adopt the report.” The DSB follows the same procedure as to adoption of an Appellate Body report pursuant to Article 17.14.

12 E.g., Annex 2 contains mandatory dispute settlement rules and Annex 3 establishes the Trade Policy Review Mechanism (TPRM) through which the WTO has a duty to review the overall trade policies of each member on a regular basis. See JACKSON ET AL., supra note 1, at 303.

13 One of the amendments brought about by the TREATY ON EUROPEAN UNION (TEU), Feb. 7,1992, reprinted in 31 ILM 247 (1992), Article 228(6) provides:

The Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article N of the Treaty on European Union.

Article N sets forth the complex process for amending the Community Treaties.

14 Judgment, slip op., para. 12. Interestingly, the prior wording of the initial sentence of Article 228 read as follows: “The Council, the Commission or a Member State may obtain beforehand the opinion of the Court of Justice …” (emphasis supplied).

15 Consequently, it is in their capacity as the States responsible for the international relations of their dependent territories which are outside the scope of Community law, and not as Member States of the Community, that the States responsible for those territories are called upon to participate in the agreement.” Id., para. 17.

16 See Opinion 1/78, Natural Rubber Agreement, 1979 ECR 2871 (approving a “mixed agreement” involving both the Community and the member states). Compare this question with the narrower one presented in Case C-327/91, French Republic v. Commission of the European Communities (Aug. 9, 1994), dealing with the powers of the Commission to conclude and “administrative agreement” with the United States Department of Justice and Federal Trade Commission on mutual cooperation in antitrust enforcement. Here, the question was the competence of the EC institutions vis-à-ws one another. See the excellent summary by Gunnar Schuster, 89 AJIL 136 (1995).

17 See WTO Agreement, supra note 3, Art. XI(1).

18 Judgment, slip op., para. 21. Compare Opinion 1/78, Natural Rubber Agreement, 1979 ECR 2871, paras. 58–60, where the Court did seem to accord significance to whether the financing came directly out of the member states’ treasuries or out of the Community’s budget itself.

19 Judgment, slip op., para. 20.

20 EC Treaty Article 232(1) provides:

The provisions of this Treaty shall not affect the provisions of the Treaty establishing the European Coal and Steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that Treaty for the functioning of the common market in coal and steel.

21 Judgment, slip op., para. 27.

22 The Court cites Case C-131/87, Commission v. Council, 1989 ECR I-3764, para. 27.

23 Council Directive 87/64/EEC, 1987 OJ. (L 34) 52.

24 Judgment, slip op., para. 29.

25 Article 1.1 of this Agreement provides in part: “This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade.” In Article 2.1 it is provided that “Members have the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.”

26 Judgment, slip op., para. 31.

27 Article 2.2 of this Agreement provides in part: “Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade.”

28 Judgment, slip op., para. 34.

29 “A restrictive interpretation of the concept of common commercial policy would risk causing disturbances in intra-Community trade by reason of the disparities which would then exist in certain sectors of economic relations with non-member countries.” Opinion 1/78, supra note 18, para. 45.

30 Id.

31 Judgment, slip op., paras. 40–41.

32 Id., para. 43. The exact wording of Article 1(2) of GATS, Dec. 15, 1993, reprinted in 33 ILM at 44, differs somewhat from the Court’s clarifying paraphrase.

For the purposes of this Agreement, trade in services is defined as the supply of a service:

(a) from the territory of one Member into the territory of any other Member;

(b) in the territory of one Member to the service consumer of any other Member;

(c) by a service supplier of one Member, through commercial presence in the territory of any other Member;

(d) by a service supplier of one Member, through presence of natural persons of a Member in the territory of any other Member.

33 Case 22/70, Commission v. Council, 1971 ECR 263.

34 Id., para. 16.

36 Subject to a number of existing treaties in this area, Article 3 of TRIPS, Dec. 15, 1993, reprinted in 33 ILM at 81, provides: “Each member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property ….”

36 Subject to several exceptions, id., Article 4 provides: “With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.” See also GATT Focus NEWSLETTER, Dec. 1993, at 12–14, quoted in JACKSON ET AL., supra note 1, at 889–91.

37 See Council Regulation (EEC) 86/3842, 1986 O.J. (L 357) 1.

38 Judgment, slip op., para. 55.

39 Article 100, as amended by the TEU, provides:

The Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market.

40 Article 100a, as amended by the TEU, contains exceptions and derogation provisions dealing with specific areas of concern only broadly hinted at in Article 100.

41 Article 235 provides that,

[i]f action by the Community should prove necessary to attain in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures.

The linkage (albeit at some distance) of the terms “necessary” and “appropriate” invites comparative analysis between Article 235 and the “necessary and proper” clause in Article I, §8 of the U.S. Constitution.

42 Judgment, slip op., para. 60.

43 Council Regulation (EEC) 84/2641, 1984 O.J. (L 252) 1. Such measures could include suspending or withdrawing commercial concessions, raising existing customs duties, or putting into place quantitative limits as to the offending third countries.

44 Council Regulation (EEC) 88/4257, 1988 O.J. (L 375) 1.

45 See Council Decision 94/0184, 1994 O.J. (L 086) 58.

46 Case 22/70, supra note 33, paras. 17 and 18. AETR relied in part on Article 75(1) (a) in the transport chapter of the Treaty, which required the Council to lay down (during the transitional period) “common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States.”

47 Judgment, slip op., para. 77.

48 Id., para. 79.

49 Council Regulation (EEC) 86/4058, 1986 O.J. (L 378) 21. Article 3 of the regulation authorizes the Council to undertake coordinated action when a third country has restricted free access by member state shipping companies to the carriage of liner cargoes.

50 Council Regulation (EEC) 86/4055, 1986 O.J. (L 378) 1. Articles 3 and 5 of this regulation look toward phasing out or modifying existing cargo-sharing arrangements with third countries and subjecting future similar arrangements to a Community authorization process.

51 Opinion 1/76, Laying-up Fund for Inland Waterway Vessels, 1977 ECR 741. The case involved an international agreement between the six interested member states within the Rhine-Moselle Basin and a third state, Switzerland, that traditionally used these waterways, to address short-term overcapacity. All of these countries were parties to the Mannheim and Luxembourg conventions regulating Rhine-Moselle water transport going back as far as 1868. Becoming part of the new supranational institution and subject to the rules thereof would require modification of the older agreements.

52 See id., para. 2. The Court also cited an example from the field of fisheries: enacting internal Community measures to protect marine resources in a given area would not be effective unless the Community joined in an international accord with nonmember countries X and Y that fish the same grounds.

53 Judgment, slip op., paras. 85–86.

54 See Art. 235, supra note 41. Article 100a provides in part that the Community shall “adopt the measures for the approximation of the provisions laid down by law, regfulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.”

55 Judgment, slip op., para. 88.

56 See supra note 51.

57 See supra note 52.

The only way to ensure the conservation of the biological resources of the sea both effectively and equitably is through a system of rules binding on all the States concerned, including non-member countries. In these circumstances it follows from the very duties and powers which Community law has established and assigned to the institutions of the Community on the internal level that the Community has authority to enter into international commitments for the conservation of the resources of the sea.

Joined Cases 3, 4, and 6/76, Officier van Justine v. Kramer, 1976 ECR 1279, para. 30/33.

58 Judgment, slip op., para. 89 (citation omitted).

59 See Council Directive 89/666/EEC, 1989 O.J. (L 395) 36.

60 Second Council Directive 89/646/EEC, 1989 O.J. (L 386) 1 (amending Directive 77/780/EEC).

61 Judgment, slip op., para. 96.

62 See supra note 51.

63 Judgment, slip op., para. 100.

64 See text at notes 54–58 supra.

65 First Council Directive 89/104/EEC, 1989 O.J. (L 40) 1.

66 I.e., Munich Convention on the Grant of European Patents, Oct. 5, 1973; Luxembourg Agreement relating to Community Patents, Dec. 15, 1989.

67 Judgment, slip op., para. 104.

68 On the duty to maintain unity of action, the Court referred to Opinion 1/78, supra note 18, paras 34–36.

69 Though Article 102 of Euratom refers to mixed agreements, the EC Treaty does not. While this might suggest that the latter may have contemplated a Treaty amendment to authorize the Community to act alone. since 1979 the Court of Justice has approved mixed agreements in cases deemed appropriate. See TREVOR C. HARTLEY, THE FOUNDATIONS OF EUROPEAN COMMUNITY LAW 169 (3d ed. 1994).

A third pattern is where the member states act alone in entering into agreements with nonmember countries. “The European Court has accepted such agreements as forming part of Community law, and being binding on the Community, only in very special circumstances.” Id. at 165.

70 This is said to have been especially true of the gradual transfer of competence from the member states to the Community of international rights and obligations under GATT. See P. S. R. F. MATHIJSEN, A GUIDE TO EUROPEAN COMMUNITY LAW 283 (5th ed. 1990).

71 Note that judicial alternatives to the advisory opinion under Article 228(6) would have been a contentious challenge to this Community act by a direct action under Article 173 or through a reference from a member state’s court pursuant to Article 177. See id. at 284.

72 Article 4, after listing the major Community institutions, declares: “Each institution shall act within the limits of the powers conferred upon it by this Treaty.” As to member states, Article 5 provides:

Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.

They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.

73 According to HARTLEY, supra note 69, at 57, the Court’s

main functions are to ensure that the law is enforced, irrespective of political considerations (especially against Member States); to act as referee between the Member States and the Community as well as between the Community institutions inter se; and to ensure the uniform interpretation and application of Community law throughout the Community.

74 See Art. 228(6), supra note 13.

75 Part of Treaty chapter 4 on the common commercial policy, Article 113(3) provides in part: “Where agreements with one or more States or international organizations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorize the Commission to open the necessary negotiations.”

76 Article 238 provides: “The Community may conclude with one or more States or international organizations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.” Sometimes by mixed agreements and sometimes by itself, the Community has relied upon this article for its many economic arrangements with countries of Eastern Europe and the Mediterranean, as well as with developing nations. See HARTLEY, supra note 69, at 168–69. Citing Articles 229–31, Professor Hartley also suggests that these three Treaty provisions dealing with relations of the Community and its institutions to international organizations “come close to granting an express treaty-making power.” Id. at 166.

77 This suggests that the Atomic Energy Community’s external powers are, in some sense, “parallel” to its internal competences. See id. at 168. In contrast, Article 228, the general treaty provision of the EC Treaty, begins subparagraph (1) with language arguably limiting its procedures to situations “where this Treaty provides for the conclusion of [international] agreements.” As Professor Hardey observes, “It is hard … to avoid the conclusion that the authors of the Treaties intended the EC to have considerably more restricted treaty-making powers than Euratom.” Id.

78 Id.

79 See, e.g., Case C-327/91, French Republic v. Commission (Aug. 9, 1994), holding that the Commission lacked the competence to enter into a 1991 executive agreement with the U.S. Department of Justice and Federal Trade Commission both to coordinate, and to avoid overlap between, the extraterritorial aspects of the antitrust and competition powers of the United States and the European Community. See Schuster, supra note 16.

80 Case 22/70, supra note 33.

81 Id., para. 17.

82 See Opinion 1/76, supra note 51.

83 The Court stated, id., para. 4:

This is particularly so in all cases in which internal power has already been used in order to adopt measures which come within the attainment of common policies. It is, however, not limited to that eventuality. Although the internal Community measures are only adopted when the international agreement is concluded and made enforceable,… the power to bind the Community vis-à-vis third countries nevertheless flows by implication from the provisions of the Treaty creating the internal power and in so far as the participation of the Community in the international agreement is, as here, necessary for the attainment of one of the objectives of the Community.

84 The Court also distinguished between the dominant and ancillary aspects of the various enactments, possibly to avoid a cumbersome section-by-section allocation of competences.

85 See especially Art. 5, supra note 72.

86 The Court’s approval of the choice of a “mixed agreement” in the Inland Waterway case involving member states engaged in river traffic may have rested solely on the special need for those states to modify their prior international accords. See HARTLEY, supra note 69, at 174.