Mixed Agreements Research Articles

Implications for the institution of mixed agreements in European Union law arising from the evolving nature of in foro externo competence

Due to the growing political debate on the necessity to revise primary law in the European Union (hereinafter: Union, EU), whereby the division of competences between the Union and its Member States is to be altered, there is a growing urgency to take a closer look at the potential consequences of these changes in regard to the ability to establish international relations – both by the EU and by Member States. In practice, this ability is evident in particular in the specific legal institution of “mixed” agreements, the signatories of which (as a rule) are not only the EU and third states, but also Member States of the Union. This institution will continue to exist for as long as the issues of the division of competences, at the core of the consideration of the nature of mixed agreements in EU law, remain relevant. The capacity to shape international relations and pursue the objectives of the Union and the Member States is of considerable importance in the context of the current global challenges they face. Being able to act jointly in this field reduces potential tensions and conflicts of interest in the relationship between the EU and the Member States, thus strengthening the Union’s own subjectivity. This article seeks to find an answer as to whether, and if so to what extent, the changes in competences leading to the establishment of new EU exclusive competences might have the effect of limiting the institution of mixed agreements. It is also important to try to determine whether a possible restriction of the said legal institution could strengthen the EU’s position in international relations.

How does politicisation affect the ratification of mixed EU trade agreements? The case of CETA

ABSTRACT This article examines how politicization has affected the ratification of the EU–Canada Comprehensive Economic and Trade Agreement (CETA) in EU member states. The study is based on the conceptual framework of discursive postfunctionalism. This approach builds on postfunctionalist arguments about the constraining impact of politicization on national governments’ EU-related policy making, but seeks to specify them further by examining mediating factors between political contestation and decisions of national policy makers. We test the explanatory power of discursive postfunctionalism by combining a comparative overview of CETA-related politicization and ratification patterns in all EU member states with in-depth case studies of five states that have seen particularly intense public contestation. Our research shows that politicization does not necessarily prevent the ratification of CETA; rather, its effects on policy making are mitigated by institutional provisions on the involvement of domestic institutions, the composition of government coalitions, and the discursive strategies of national governments.

The European Commission and the “Europeanisation” of EU trade diplomacy: the case of EU-China relations, 1999–2021

In recent times, the European Commission has shown to have increasing difficulty keeping up its central position in trade diplomacy towards China, in the face of a growing wariness and assertiveness of the member states. In this article, we observe a changing balance, a development from EU diplomacy towards European diplomacy, meaning a growing influence of EU member states in the process. We call this the “Europeanisation” of EU economic diplomacy. This is not limited to China and reflects a broader development, as is visible in the politicisation of the negotiation processes towards the (failed) Transatlantic Trade and Investment Partnership (TTIP) and the (provisionally applied) Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, and also in the trend towards mixed agreements that require member state ratification. However, it was particularly in the relations with China that such trends became visible for the first time and have continued to manifest themselves throughout the years. Apart from the member states assembled in the Council, also the European Parliament has strengthened its position in the process at the expense of the Commission.

Withdrawal from mixed agreements under EU law: the case of the Energy Charter Treaty

This article argues that under EU law, the EU and its Member States can withdraw from a multilateral agreement such as the Energy Charter Treaty independently of one other. While loyalty obligations may require the EU and its Member States to coordinate their actions under a mixed agreement closely, all can withdraw. The autonomous nature of EU law does not allow Member States to prevent the EU from taking decisions within its competence. Similarly, as the European Court of Justice maintains, under EU law, the EU and its Member States are only ratifying those parts of the agreement that fall within their competence – thus, Member States are entitled to cease exercising their powers through withdrawal. However, this power to withdraw unilaterally is not without complications. First, it may affect the ability of others to remain a party to the Energy Charter Treaty under EU law. Second, where not all Member States and the EU withdraw, ‘incomplete mixity’ raises several complicated questions under international law, particularly those concerning international responsibility and investor-state dispute settlement provisions. Coordinated withdrawal by all Member States and the EU is, therefore, the preferred policy option.

Договор энергоснабжения через присоединенную сеть

The topic of this article was chosen because an agreement for power supply via a connected grids remain significant for the legal regulation of civil-law transactions with energy resources with various physical properties. As is known, the supply of these resources via a connected grid is nothing more than one of the ways to fulfill obligations arising from such agreements. At the same time, this technical feature has to be taken into account when fulfilling obligations under specific types of predominantly mixed agreements currently used to regulate civil law relations, including business relations, related the energy markets existing in our country. The author examines the regulations formulated by the legislator regarding the concept and legal characteristics of a power supply agreement, its elements, the responsibilities of the parties, its amendment and termination from a critical perspective.

Article 9 - EU FTAs and divided sovereignty: Transformative shifts in trade authority

EU trade policy has evolved on the scope of its remit through what can be framed as “creeping competence” (Pollack 1994, 2000). Since the Treaty of Rome to the Lisbon Treaty the EU has consolidated its sovereignty over trade by broadening its competences. However, the enlarged scope of EU FTAs has pushed subnational units to demand shared sovereignty over trade issues to protect the status quo on their regulatory competences. In turn, the 2017 Court of Justice ruling that the EU-Singapore Agreement could only be concluded with the consent of the EU and its Member States has led the Commission to propose the splitting of trade deals into EU-only and “mixed” agreements. While the EU holds to its exclusive competences in the former, mixed agreements require divided sovereignty with the member states. Both the engagement of subnational entities in trade policy and the impact of the Court decision represent transformative shifts in the locus of trade policymaking from centralized competences to divided sovereignty with national and subnational entities. The ensuing difficulties in ratifying EU trade agreements have prompted stop-gap solutions that raise questions as to where the pattern of “creeping competence” is applicable. These political and legal challenges highlight that “creeping competence” may have unintended consequences unleashed by the dynamics of the policy itself. In trade policy the notion of “creeping competence” has to capture the legal challenges, the efforts to claw back centralization, as well as the pushback by subnational entities to protect their regulatory sovereignty.

Договор на эксплуатацию путей необщего пользования в системе договорных обязательств Беларуси и России

Introduction. In the Republic of Belarus and in the Russian Federation, the railway holds a key place in the freight transportation system. Therefore, special attention is paid to the issue of the formation of appropriate infrastructure, including the construction and operation of auxiliary facilities, in particular, non-public tracks, which requires the development and improvement of appropriate legal forms. One of these forms is the agreement for the operation of a non-public track, which is introduced by acts of special legislation, primarily by the Charter of Public Railway Transport in Belarus and in Chapter 4 of the Charter of Railway Transport of Russia dated January 10, 2003, No. 18-FZ. In legal science, the legal essence of this agreement is debatable. The specified agreement is classified both as an organizational one, and as a services agreement, and as a special transport agreement (an independent agreement-based type), and as a mixed property agreement. Meanwhile, in the transport legislation, the specified agreement is settled as concisely as possible, which can potentially lead to collisions and disputes between the participants in the transportation relationship. Therefore, the purpose of the proposed study is an attempt by means of comparative legal analysis to identify not only the content of obligations arising on the basis of an agreement for the operation of a non-public track, but also to assess the prospects and ways of developing the legal regulation of this sphere in Belarus and Russia. Methods: the methodological framework for the study is a set of general scientific and special methods of scientific cognition, in particular, comparative law, the method of systemic and structural analysis, etc. Results: based on the study and comparison of Belarusian and Russian legislation, as well as the provisions of the civil doctrine, the legal nature of the agreement for the operation of nonpublic tracks is clarified. The author’s position regarding the place of the said agreement in the system of civil agreements is substantiated; the issues of improving the statutory regulation of relations arising out of the operation of the named object are raised. Conclusions: as a result of the study, the conclusion on the complex nature of the legal regulation of the transport sphere is substantiated, which is directly manifested in the specifics of the contractual structure under consideration, and the term “agreement for the operation of non-public tracks” itself is a collective symbol that is designed to fix the features of various civil obligations in relation to the transportation process involving the use of tracks not belonging to the owner of the infrastructure. It is established that, taking into account the specific factual circumstances between the participants of the transportation process, one way or another, involving the use of non-public tracks, the relations are formed by their legal nature corresponding to the relations of irregular lease, paid services, usufruct (easement), as well as relations of a mixed nature, mediated by mixed agreements containing the elements of all the listed agreement-based types.

Conflicts of sovereignty over EU trade policy: a new constitutional settlement?

This paper investigates whether the politicization of a new generation of trade agreements has led to the transformation of EU trade policy. It provides a qualitative study of multilevel contention based on sources from civil society and the parliamentary archives in Belgium, Germany, and the European Union concerning the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and three subsequent agreements concluded by the EU with Japan, Vietnam, and Singapore. We argue that, far beyond mere institutional disputes, the contention surrounding CETA has epitomized two conflicting visions of sovereignty: on the one hand, a vision where national executives qua states share sovereignty under the auspices of the European Commission, and on the other hand, a claim to reassert popular sovereignty (and the channelling thereof by parliaments) in a multilevel fashion. We demonstrate that the strengthening of the latter vision has been limited as the empowerment of parliaments was not sustained when civil society’s mobilization waned. The EU institutions have successfully curtailed the category of mixed agreements thus limiting the involvement of national and regional parliaments. CETA was a climax in the politicization of trade yet failed to bring about a new constitutional settlement that enhances the popular component of sovereignty in the EU.

Concluding International Investment-Related Agreements with Non-EU Countries: Roles of the EU and Its Member States

The 2009 Lisbon Treaty has added an important exclusive competence for the European Union (EU) in the common commercial policy area, namely, foreign direct investment, thus making it a crucial actor in international investment protection. This has a huge impact on shaping international investment policy in Europe and has raised important questions, especially regarding the legal consequences of the EU’s exclusive competence in the negotiation process of international investment agreements (IIAs) with third countries. This article explores the role of the EU and its member states in negotiating and concluding IIAs with third countries. In the first part, the article illustrates when individual member states are authorized to conclude a new bilateral investment treaty with a third country, with a focus on the EU´s Regulation No 1219/2012 and its implementation. In the second part, the article questions what it means for the EU and its member states to conclude investment mixed agreements with third countries, how the negotiation processes are conducted, and what is the impact of the division of competences between the EU and its member states. The final part of the article shows the current issues of ius standi and financial responsibility in investment dispute settlement involving foreign investors, with a focus on the EU´s Regulation No 912/2014 and the negotiation processes of the EU with third countries.

Shared Obligations and the Responsibility of an International Organization and Its Member States

Abstract Discussions on the allocation of international responsibility between an international organization and its member states do not comprehensively engage with the role of obligations in assigning responsibility to the organization and/or its members. The present article sets out what will be termed an obligations-based approach to the allocation of international responsibility by exploring the phenomenon of sharing international obligations by an international organization and its members, as well as the implications thereof for their responsibility under international law. It will do so by focusing on the practice of concluding mixed agreements by the EU and its member states, which commonly results in overlapping obligations for the organization and its members. It is ultimately argued that a distinction should be made between two types of shared obligations in mixed agreements in order to untangle who can be held responsible in case of a breach: the EU, the member state(s), or both.

EU Trade Agreements: To Mix or Not to Mix, That Is the Question

The European Union (EU) can only act internationally on competences that have been transferred to it by its Member States. Trade agreements negotiated by the EU that include provisions outside its exclusive competences should be concluded as ‘mixed’. Mixed trade agreements must be ratified following not only the procedures set out in the EU treaties, but also the national ratification procedures of the Member States. As a result, national or even regional parliaments may block trade deals agreed between the EU and its trading partners after years of negotiations. Should the EU then avoid negotiating mixed trade agreements? We argue that the answer to this question depends crucially on the objectives of the EU when negotiating with its trading partners. If the EU is mostly driven by market-access motives, it should restrict the agreement to policy areas under its exclusive competence, thus insulating the trade deal from the legal and political risks of mixity. When instead its motives are mostly political, mixity is a ‘necessary evil’ to achieve non-trade objectives. Trade Agreements, European Unity, Competences, Ratification Procedures

За правомощието на Конституционния съд да се произнася за съответствието на смесените договори с Конституцията

This study aims at examining the general characteristics of constitutional review of international treaties and highlighting its specificities with regard to mixed European Union agreements. Legal issues stem from the fact that, in this case, we are faced with international treaties concluded not only by the Bulgarian State but by the European Union together with the Member States and third countries. Since the competence of the European Union is exclusive in certain fields, the Union has to ‘mix’ its competences in external relations with that of the Member States in order to be able to act in all aspects of international relations. Although, the review of the constitutionality of mixed agreements does not reveal any specific situation with regard to the power of the Constitutional Court to rule on the compliance of the international treaties with the Constitution, the main issue is about the limitations of the Court, exercising a preliminary and ex post review of the constitutionality of international treaties in the case of a mixed agreement, in the light of the obligation of sincere cooperation, on the one hand, and the safeguarding of the constitutional identity of the Bulgarian State’s participation in the establishment and development of the European Union, on the other hand.

The Practices of ‘Splitting’ and ‘Common Accord’ Under Scrutiny: the European Parliament‘s Request for an Opinion of the European Court of Justice on the Istanbul Convention

Abstract With all eyes on the recent global COVID-19 pandemic, another pandemic has been growing in the shadows: violence against women. The Council of Europe’s Istanbul Convention creates a legal framework in order to protect women against all forms of violence. Its ratification process, however, has faced considerable challenges, particularly in the Central and Eastern European Member States. This article discusses the basic elements of the Istanbul Convention, reflects on the ratification process in the EU and its Member States, and sets out the main legal issues raised in the European Parliament’s request for an opinion (A-1/19 of 22 November 2019) to the Court of Justice of the European Union. Special focus is put on the choice of the correct EU legal basis and the practices of ‘splitting’ and ‘common accord’. This article argues that the European Parliament’s request for an opinion provides the perfect opportunity for the Court of Justice of the European Union to further clarify the law and the practice of concluding mixed agreements by the EU and its Member States.

Terms of service as a ground for establishment of ownership to virtual property

Problem setting. Today, the use of numerous sites is allowed only with the consent of the user agreements (Terms of Service) offered by them. Most often, users tick them, which is tantamount to signing such agreements, without even reading. However, it turns out that in most cases, user agreements, which are essentially agreements between users and providers, are aimed only at securing the interests of providers and in fact impose significant restrictions on users without granting them any rights other than the right to use the service. In addition, providers create them in such a way as not to draw the attention of users to the presence of the contract in this relationship. Such agreements are generally placed as hyperlinks at the bottom of the page or are created as a step that the user must agree to during registration. On this basis, the question of the need to strengthen the protection of users’ rights as a weaker party to the contract, by analogy with consumer protection, is increasingly raised. Moreover, the possibility of considering a user agreement as a kind of contract is widely discussed. Analysis of recent researches and publications. Given the novelty of such a phenomenon as user agreement, today there are not many studies devoted to them, especially in domestic science. Among foreign researchers of the legal nature and specifics of user agreements can be mentioned K. Cornelius, L. Belli and J. Venturini, T. Romm, P. Randolph, M. Radin, A. Savelyev, N. Vlasova. Thus, there is a lack of domestic research on the legal nature of user agreements, so there is an urgent need for research in this area. Target of research is to study the legal nature of the user agreement and analyze the possibility of it to become a ground for legal relationships, in particular, a ground for establishment of ownership to virtual property. Article’s main body. The article analyzes the possibility of considering user agreements as potential grounds for the emergence of ownership to virtual property. The judicial practice to protect the rights of users of accounts and European approaches to the protection of user rights are analyzed in the article. The research data, which give grounds to speak about violation of user rights by user agreements are given. In turn, this gives reason to question the possibility of considering the user agreement as a kind of contract. However, the analysis performed allows us to conclude that it is possible to consider the user agreement as a mixed contract, which can potentially serve as a ground for the emergence of virtual property rights. Conclusions and prospects for the development. Terms of Service agreements should be considered as mixed agreements that contain elements of several agreements. In particular, in the context of the emergence of virtual property rights from such agreements, elements of the Terms of Service agreement should be distinguished, which determine the legal consequences for the virtual property created within the online platforms. In the doctrine, the concept of virtual property as a kind of property right is already quite common today, and this kind of right may well arise from the contract, which in this case may be the Terms of Service agreement. If the Terms of Service agreement is recognized as the ground for the emergence of virtual property rights, it is necessary to provide in it how the balance of interests of platform developers and users in relation to virtual property will be determined. Obviously, all the features of the implementation and protection of virtual property rights, cases of its restriction will be specified in the contract.

Provisional application of international agreements by the EU

This article discusses the law and practice of provisional application of international agreements by the EU. After a discussion of Article 25 of the Vienna Convention on the Law of Treaties 1969, Article 218(5) TFEU is analysed. This is followed by a discussion of different methods of provisional application, of provisional application in the context of mixed agreements, and of the European Parliament’s role in relation to provisional application. The article ends with a discussion of the ways in which provisional application can be terminated. It concludes that the EU tends to apply agreements provisionally in different manners, but with the same basic principles in mind. Provisional application is a process in which the role of the European Parliament is limited. Finally, shifts in competence over the past decade imply changes in the EU’s practice in applying Article 218(5) TFEU.

EU Mixed Agreements in International Law under the Stress of Brexit

Since 1961, the EEC has concluded so-called mixed agreements with the rest of the world. On the EU side, such agreements are concluded both by the EU and by its member states, acting jointly. This is a consequence of the principle of conferral, which sometimes limits EU capacity to act on the international stage; it also helps managing over time the evolving distribution of competencies between the EU and its member states. If mixed agreements are consistent with the EU legal order, they constitute a peculiar novel practice under general international law. Such agreements do not fit in any of the existing treaty law ‘categories’, and the legal qualification for the EU and its member states’ commitments under mixed agreements may appear problematic according to international law. Under EU law, the principles of pre-emption and sincere cooperation are applicable. However, Brexit forces legal scholars to reconsider the issue under international law: what happens when a member state leaves the EU regarding its commitments under mixed agreements? According to international law it shall remain a party to such agreements, as a State, bound by its international commitments. But how and under which conditions shall these agreements be implemented remain open questions. We propose to investigate these legal issues with regard of the UK’s commitments under mixed agreements in the perspective of Brexit.

Die Zukunft umfassender und gemischter Abkommen der EU nach dem Singapur-Gutachten

The article explores some legal issues regarding comprehensive trade and mixed agreements of the European Union (EU). The concept of mixed agreements is special to the EU legal order and under strain after the opinion 2/15 of the Court of Justice of the European Union of 16 May 2017, in which the Court defined the exclusive competence of the EU for concluding “EU-only agreements” in the context of the common commercial policy. This led to a split-up of trade agreements of the Union into “EU-only agreements” and mixed agreements on investment issues whereas no change of policy had been established for association agreements to date. Besides creating greater legal certainty, some problems remain regarding the to-be-improved acceptance of EU free trade agreements in the Member States. The analysis focuses on the division of powers between the EU and the Member States and its impact on mixed agreements on a political and legal level. It concludes that “mixity” has not been ended by the jurisprudence of the Court of Justice and can still be seen as a useful tool in the process of negotiating and concluding future comprehensive international trade and association agreements.

Shared Obligations and the Responsibility of an International Organization and its Member States: The Case of EU Mixed Agreements

Discussions on the allocation of international responsibility between an international organization and its member states do not comprehensively engage with the role of obligations in assigning responsibility to the organization and/or its members. The present article sets out what will be termed an obligations-based approach to the allocation of international responsibility by exploring the phenomenon of sharing international obligations by an international organization and its members, as well as the implications thereof for their responsibility under international law. It will do so by focusing on the practice of concluding mixed agreements by the EU and its member states, which commonly results in overlapping obligations for the organization and its members. It is ultimately argued that a distinction should be made between two types of shared obligations in mixed agreements in order to untangle who can be held responsible in case of a breach: the EU, the member state(s), or both.

Withdrawal from the eu and Bilateral Free Trade Agreements

Ambiguity still remains around the legal effects of a Member State’s withdrawal from the eu in relation to the new generation of Free Trade Agreements (‘ftas’), which are concluded as bilateral mixed agreements. Such withdrawal may have secondary implications in relation to the international obligations towards the other party of the ratified agreement. According to article 70(1)(a) of the Vienna Convention on the Law of Treaties (‘ vclt ’), the termination of a treaty under its provision releases the parties from the obligation further to perform the treaty. However, mixed agreements that are signed by both the Member State and the eu may cause complications. The obligation of sincere cooperation could play a large role in respect of the Member State’s compliance with its commitments under the agreement. Indeed, there are many concerns regarding the effect of the withdrawal on the eu and the withdrawing Member State in respect to mixed ftas. Could a withdrawal lead to an automatic termination or renegotiation of a trade agreement? Would it be possible to argue for fundamentally changed circumstances? Or could the principle of continuity in the vclt in the context of succession of states affect the outcome?This contribution aims to clarify the legal situation in regard to bilateral mixed ftas that are ratified or provisionally applied—such as the eu-Canada Comprehensive Economic and Trade Agreement (‘ ceta ’)—in the event of a Member State’s withdrawal from the eu. It considers the Member State’s responsibilities and obligations when the withdrawal has been effectuated. Additionally, it explores the rights of the non-eu party to the agreements, as well as the consequences that the eu might face as a remaining party to the agreement.

The Phenomenon of Mixed Agreements – between Public International and European Union Law

This paper, that intends to be a small tribute to the memory of Professor Karol Wolfke, is concerned on the Union’s international agreements of the most important category. They seem to be even more interesting as they turn out to be an unusual source from the standpoint of public international law. Keywords: mixed agreements, EU, public international law