The EU and its Member States’ Joint Participation in International Agreements

✍ Scribed by Nicolas Levrat; Yuliya Kaspiarovich; Christine Kaddous; Ramses A Wessel (editors)

• Publisher: Hart Publishing
• Year: 2022
• Tongue: English
• Leaves: 329
• Series: Modern Studies in European Law
• Category: Library

✦ Synopsis

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

✦ Table of Contents

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