The EU and its Member States’ Joint Participation in International Agreements (Modern Studies in European Law)

## THE EU AND ITS MEMBER STATES' JOINT PARTICIPATION IN INTERNATIONAL AGREEMENTS EU law has developed a unique and complex system under which both the Union and its Member States can act under international law, separately, jointly or in parallel. International law was not set up to deal with such complex and hybrid arrangements, which raise questions under both international and EU law. This book assesses how EU law has adapted to cope with the constraints of international law in situations in which the EU and its Member States act jointly in relations with other States and international organisations. In an innovative scholarly approach, reflecting this duality, each chapter is jointly written by a team of two authors. The various contributions offer new insights into the tension that continues to exist between EU and international law obligations in relation to the (joint) participation of the EU and its Member States in international agreements. Foreword Contents List of Contributors Introduction: Torn between Two Lovers: The Application of both EU and International Law to the Participation of the EU and its Member States in International Agreements I. On the Content of the Book II. On the Structure of the Book PART I: MIXED AGREEMENTS FROM AN EU LAW PERSPECTIVE 1. A Typology of EU Mixed Agreements Revisited I. Introduction II. Distribution of Competence as a Criterion for a Typology III. The Number of Parties as a Criterion for a Typology IV. Conclusion 2. The Continuing Contestation of ERTA: Conferral, Effectiveness and the Member States’ Participation in Mixed Agreements I. Introduction II. A Reading of ERTA Premised on the Protectionof the Union’s Policy-Setting Space III. Member State Challenges in Pre-Lisbon ERTA Litigation IV. Member State Challenges in Post-Lisbon ERTA Litigation V. The Lingering Dissonance: Can the Principleof Conferral Rein in Supervening Exclusivity? VI. Conclusions: Understandings of Conferralas a Source of Dissonance in Mixed Agreements 3. Foreseeability and Anticipation as Constraints on Member State Action under Mixed Agreements I. Introduction II. Foreseeability in EU Law III. Anticipation in EU Law IV. The Rulings of the Court of Justice and Article 4(3) TEU V. Conclusion 4. The Mixed Nature of the EU-Canada FTA: Between Competences Distribution and Democratic Legitimacy I. Introduction II. The EU Trade Policy: A EuropeanCommon Policy that Divides III. The CETA Saga: a Contribution of National Parliaments to the Legitimisation of Trade Agreements IV. Criteria and Procedure to Determinethe Exercise of External Shared Competencesby the EU and its Member States V. Lessons and Conclusions 5. The Representation of the EU and its Member States in Multilateral Fora: The AMP Antarctique Effect I. Introduction II. The Basic Framework for the EU’s Participation and Representation in Multilateral Fora III. The Peculiar Case of the EU’sParticipation in the CCAMLR IV. The Court’s Questionable Finding ofObligatory Mixed Representation in the CCAMLR V. AMP Antarctique and its Significance for the EU’s Representation in Multilateral Fora VI. Conclusion PART II: MIXED AGREEMENTS FROM AN INTERNATIONAL LAW PERSPECTIVE 6. EMU ‘Mixity’: Overlap Between EU and Member States Action in Economic Governance I. Introduction II. Economic Policy: Shared CompetencesLeading to Hybrid Institutional Solutions III. Two Examples of Hybrid (EU/Member States)Action: The Single Resolution Fund and theConclusion of the MoUs for Financial Assistance IV. Reflections on the Mixed Nature of the Economic Governance of the EU: A Comparison with theIssues Arising in the Field of Mixed Agreements V. Conclusion 7. Nomen est Omen?: The Relevance of ‘EU Party’ in International Law I. Introduction II. The EU and its Member States asTreaty Parties – To Be or Not to Be! III. Joint Participation of the EU and itsMember States – Being Part of a ‘Party’? IV. The Term ‘EU Party’ in MixedAgreements – Nomen or Omen? V. International Law Effects of the‘EU Party’ – Are We One or Are We Many? VI. Conclusion – Nomen may be Omen 8. Conformity of International Dispute Settlement Mechanisms with EU Law: Does the EU’s Participation Really Matter? I. Introduction II. Setting the Scene III. Opinion 2/13 on the ECHR Accession: The EU’s Participation as the Troublemaker? IV. Turning the Tables: ISDS’s SalvationThrough EU’s Participation V. Conclusions 9. International Responsibility of the EU and/or its Member States in International Agreements: From Joint Participation to ‘Participation’ I. Introduction II. International Responsibility andthe EU: Some General Considerations III. Joint Participation of the EU and itsMember States in Mixed Agreements: QuestionsLeft Unanswered within a Variety of Solutions IV. ‘Participation’ and EU Responsibility V. Conclusions PART III: THE EU AND ITS MEMBER STATES’ PARALLEL PARTICIPATION IN INTERNATIONAL AGREEMENTS 10. The Future of the Istanbul Convention before the CJEU I. Introduction II. The Istanbul Convention: An Overview III. The Background to and the Subject-Matter of the Request for an Opinion IV. The Issue of Legal Basis V. The Issue of Mutual Agreement VI. Conclusion 11. The New Review Mechanism of the UN Smuggling of Migrants Protocol: Challenges in Measuring the EU’s and its Member States’ Compliance I. Introduction II. The EU as Party to the Smuggling ofMigrants Protocol: The Roots of Mixity III. Mixity in the SoM Protocol and itsImplementation: The Case of Criminalisationof Migrant Smuggling and Related Acts IV. The Review Mechanism and the SoMProtocol: Issues of Mixity in New Refractions V. Conclusions 12. The EU Accession to the ECHR and the Responsibility Question: Between a Rock and a Hard Place I. Introduction II. The Contours of the Principle of Autonomy vis-à-vis International Dispute Settlement Mechanisms III. The 2013 DAA: Preserving Autonomy witha Light Touch on the Responsibility Question IV. Further Simplifying and Internalising the Responsibility Question as a Way Forward? V. Conclusion PART IV: EU INTERNATIONAL AGREEMENTS IN UNCERTAIN TIMES 13. Social and Legal Relevance of Sincere Cooperation in EU External Relations Law in an Era of Expanding Trade: Th e Belt and Road Initiative in Context I. Introduction II. EU External Representation: On Disintegration III. The Belt and Road Initiative (BRI) of China IV. An Example to New Enlargement Members?On the Western Balkans and China V. Analysis: The BRI and the EU Member States – Breachof Sincere Cooperation? VI. Conclusions 14. The Status of the United Kingdom Regarding EU Mixed Agreements after Brexit I. The Determination of the UK's Status as a Party to EU Mixed Agreements II. The Impact of Withdrawal on the UK's Participation in EU Mixed Agreements III. Conclusion 15. Unmixing Mixed Agreements: Challenges and Solutions for Separating the EU and its Member States in Existing International Agreements I. Introduction II. Reasons to ‘Unmix’ Mixed Agreements III. How to ‘Unmix’ a Mixed Agreement? IV. The Practice of ‘Unmixing’ a Mixed Agreement V. Conclusion: One Cannot Unscramble Scrambled Eggs Index Over the last 10 years, economic and monetary policy has been the object of inventive solutions, whose conformity with the constitutional order of the European Union (hereafter 'EU') was often dubious.[1] Those sui generis legal and institutional responses to the crisis also raised interrogations about the preservation of the balance between the more powerful and the economically weaker Member States.[2] Those measures gave rise, furthermore, to a series of reflections concerning the shift of economic policy towards the executive power, to the detriment of the legislative power and democratic representation in decision making.[3] Indeed, the measures that were justified by the economic urgency, in which certain Member States of the eurozone found themselves, often involved a strengthening of the intergovernmental approach. In the field of economic policy, we can clearly observe this tendency to go the intergovernmental way. In addition to the leading role taken by the EU's most intergovernmental bodies (the European Council and the Eurogroup), we have seen the conclusion of a number of international law treaties to support the stability of the EU's Economic and Monetary Union. Unlike the other contributions in this book, this one does not concern the external action of the Union and its Member States, but their joint action 'internally', within the framework of a policy whose conduct involves a special form of cooperation based on a combination of EU law and international law. We will, however, draw a comparison between the field of joint external action of the Union and its Member States and the 118internal EU field of economic policy. Economic policy is a domain of EU action in which recourse to international agreements between groups of Member States, acting outside the EU legal framework, has been confirmed to be a valid option,[4] leading to forms of hybrid or mixed economic governance - thereby replicating, to some extent, the forms of governance created by mixed agreements. Such a comparison is relevant, in that it raises some interesting questions relating to the joint action of the EU and its Member States: in particular, as we shall see, the question of the allocation of responsibility and that of the distribution of competences between Member States and the EU. For this purpose, we will firstly (in section II) highlight the essentially shared nature of the EU's competence in the economic 'branch' of the Economic and Monetary Union (hereafter 'EMU'), allowing for a juxtaposition of EU action and Member States agreements, as mainly exemplified by the European Stability Mechanism (hereafter 'ESM'). We will then (in section III) examine two concrete examples of joint/mixed action of the EU and the Member States: that of the creation and operation of the Single Resolution Mechanism, which is part of the Banking Union; and that of the Memoranda of Understanding adopted in connection with financial assistance to eurozone states, in which we observe joint action by the ESM and by some EU institutions. This will enable us (in section IV) to highlight the eminently hybrid nature of this complex legal regime, and compare it with the equally hybrid character of the mixed agreements in the domain of external relations "EU law has developed a unique and complex system under which the Union and its member states can both act under international law. Ultimately though, international law was not set up to deal with complex and hybrid arrangements, leading to confusion: a situation which no doubt will be further complicated by the UK's status after Brexit. This book looks at how EU law has learned to cope with the constraints of international law when dealing this joint participation. In an innovative scholarly approach, its methodology mirrors this duality with each chapter being written by a team of 2 authors. This offers a unique dual perspective on long debated questions. Anchored by this strong organising framework, the essays look at questions of: constitutional law, international law, joint participation and joint agreements. The collection is timely, as the a unique and complex system under which the Union and its member states can both act under international law is facing new challenges, not least in the face of Brexit."-- Provided by publisher EU law has developed a unique and complex system under which both the Union and its Member States can act under international law, separately, jointly or in parallel. International law was not set up to deal with such complex and hybrid arrangements, which raise questions under both international and EU law. This book assesses how EU law has adapted to cope with the constraints of international law in situations in which the EU and its Member States act jointly in relations with other States and international organisations. In an innovative scholarly approach, reflecting this duality, each chapter is jointly written by a team of two authors. The various contributions offer new insights into the tension that continues to exist between EU and international law obligations in relation to the (joint) participation of the EU and its Member States in international agreements. Volume 108 in the Series Modern Studies in European Law "EU law has developed a unique and complex system under which the Union and its member states can both act under international law, separately, jointly or in parallel. International law was not set up to deal with such complex and hybrid arrangements, which raise questions under both international and EU law. This book assesses how EU law has been adapted to cope with the constraints of international law in situations in which the EU and its member states act jointly in relations with other states and international organisations. In an innovative scholarly approach, reflecting this duality, each chapter is jointly written by a team of two authors. The various contributions offer new insights into the tension that continues to exist between EU and international law obligations in relation to the (joint) participation of the EU and its member states in international agreements"-- Provided by publisher