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The Law of EU External Relations: Cases, Materials and Commentary on the EU as an International Legal Actor
... This means that the EU, just like third states, can become a subject of the rights and duties of international agreements. The EU has won the right to have the status of a so-called 'Regional Economic Integration Organization' (REIO), a legal concept which allows the EU -and in the future possibly other regional organizations -to act legally at the international level (Kuijper et al., 2013). The EU is nowadays a party to about 60 MEAs (European Commission, 2020), which cover a broad range of environmental domains including air, biotechnology, chemicals, climate change, biodiversity, soil, waste and water policies. ...
This chapter analyses the participation and contribution of the EU to international environmental negotiations. It gives an overview of the EU’s status as a partner in these negotiations and as a party to multilateral environmental agreements. In order to grasp how the EU acts as an negotiator at the international level, it is important to understand the internal division of legal competences, the external representation arrangement and the internal coordination process in the EU. This chapter also reviews the role of the EU in international environmental negotiations, the impact that the EU can have on their outcomes and the future challenges confronting the EU as it seeks to exert greater international leadership.
... This means that the EU, just like third states, can become a subject of the rights and duties of international agreements. The EU has won the right to have the status of a so-called 'Regional Economic Integration Organization' (REIO), a legal concept which allows the EU -and in the future possibly other regional organizations -to act legally at the international level (Kuijper et al., 2013). The EU is nowadays a party to about 60 MEAs (European Commission, 2020), which cover a broad range of environmental domains including air, biotechnology, chemicals, climate change, biodiversity, soil, waste and water policies. ...
... 137 Three reasons can be summed for that; one, the EU is not a State rather an international organisation (regional community) comprising twenty seven Member States. 138 Not all of its Member States' legal systems, have demonstrated a strict adherence to the fundamental principles of democracy and rule of law. 139 Happold 140 claims that the Court's opinion makes 'an implicit recognition that, despite the principles of "mutual trust" and "sincere cooperation", national justice systems within the EU do not always provide a satisfactory level of protection'. ...
This paper discusses the complex question of the appropriate role of domestic courts in Investor-State Dispute Settlement (ISDS) in contemporary international investment agreements. It does so by exploring the traditional role assigned to domestic courts at two levels: Firstly, in international institutional instruments like the ICSID Convention and the UNCITRAL Arbitration Rules as well as the traditional conceptual framework rationalising that role. Secondly, it examines how the States through old-generation Bilateral Investment Treaties submitted to the jurisdiction of the international institutional arbitration fora, but also incorporated mechanisms to reserve a role for domestic courts to adjudicate investment disputes by either linking the two systems or as alternatives, while other States rejected international arbitration in favour of exclusion jurisdiction of domestic courts. For each mechanism created by the host-States, the paper observes how the traditional conceptual framework on ISDS restricted domestic courts' from effectively exercising their primary judicial function relating to aspects of dispute resolution and/or law enforcement and the aspect of law-interpretation and/or-development. Through a comprehensive analysis of the contemporary approaches to ISDS, this paper reveals three important changes to the traditional conceptual framework on ISDS; one is that international investment law is increasingly regionalised to suit regional cultural histories and interests. A change that has come to fruition from the proliferation of regional trade and investment grouping as well as bilateral free trade and investment agreements. The second change comes from national investment policy reforms which totally reject international investment arbitration for equality between foreign investors and local investors by categorising the risk of uncertainty in domestic judicial remedies as a business risk. The third aspect relates to an increasing convergence between international investment law and national law emanating from voluntary multilateral agreements imposing standards to be incorporated in investment agreement as a means of addressing global inequalities like the United Nations Sustainable Development Goals. This paper will show that setting standards of review of governmental measures to control the interpretation and adjudication of breach of investment agreements as well as the convergence between international and local laws reduces the risk of uncertainty of domestic remedies for foreign investors. This paper turns to the discussion on the EU approach to ISDS which it considers as one of the contemporary trends to ISDS. It examines the effect of the fork-inroad clause in the Comprehensive Economic and Trade Agreement between the European Union and Canada and assessed whether other provisions of that agreement facilitate recourse to domestic courts, like the exception to the fork-inroad clause which provide possibilities for private domestic adjudication and by extension the contribution of domestic courts to the implementation and/ or development of IIL. Using the opinion of the Court of Justice of the European Union the CETA, the paper discusses the rationale for the EU approach to ISDS and concludes that the role of domestic courts should be enhanced by granting direct effect to international investment agreements. 3
The principle of environmental integration is part of the European Union’s (EU) Sustainable Development Strategy, which defines the bloc’s long-term vision for environmental protection. The development of comprehensive sustainability and environmental protection policies in the EU involves bilateral and regional agreements on investment and trade. Therefore, the negotiations on foreign investments within (intra-EU) and outside the EU (extra-EU) are defined by the evolving jurisprudence of the Court of Justice of the European Union (CJEU), in particular the Achmea, Micula and Komstroy cases, Opinions 1/17 and 1/20. The EU investment and trade landscape is gradually becoming a repository of foreign investments, especially from emerging countries, such as Brazil, China and India. As a consequence, the EU adopts investment regulations instead of bilateral agreements of foreign investment protection, distancing itself from the traditional model of investor-State arbitration dispute settlements. The EU’s adoption of mega agreements, particularly, the Canadian-EU agreement (CETA), establishes an elevated protection for the EU market. Although the European trend seems to aim at centralizing environmental and investment protection together, the treatment for investment reflects its repositioning as a recipient of foreign capital, changing its historical characteristic of capital exporter. When analyzing the EU’s provisions on investment, there are new measures to block trade and investment liberalization using the strategy of environmental protection, as seen in the EU 2023/1115 Deforestation-Free Regulation, as well as the continuous opposition to the Mercosur-EU agreement by some EU Members, and the regulation 2024/1252 for critical minerals for energy transition. This Chapter concludes that the EU uses the principle of integration and environmental protection to oppose bilateral and regional agreements, securing trade protectionism. This behavior is justified on the grounds that the Union becomes a capital importer and the sustainable measures are effective in hampering foreign capital and goods.
Executive Summary This Working Paper explores the current legal basis and governance structures of the European Union's (EU) "external action plus". In our understanding, the notion of "external action plus" not only includes the foreign, security and defence policy, trade, sanctions policy, development cooperation or humanitarian aid but also EU sectoral policies with an external dimension. In line with this definition, this Working Paper presents both the traditional external action areas of common commercial policy, sanctions policy and development cooperation and humanitarian aid, as well as the external dimension of some internal policy areas, including competition, health and environment. Despite several Treaty amendments, the EU's external actions are still fragmented and competences are scattered throughout the two Treaties. The list of common objectives under Article 21(2) of the Treaty on European Union (TEU) or the dual role of the High Representative of the Union for Foreign Affairs and Security Policy (HR/VP) are clear attempts to overcome the "bipolarity" of EU external actions. The continued existence of different legal bases that enable the Union to act externally still represents a significant challenge for EU policymakers. ENGAGE_Europe @ENGAGE_Europe engage-eu.eu For More Information
The EU’s Common Foreign and Security Policy (CFSP) is subject to “specific rules and
procedures” that seem to stand in the way of its effectiveness. This Working Paper assesses
the special legal nature of the CFSP and explores the legal possibilities to enhance decisionmaking procedures. It argues that current EU Treaties should not necessarily be amended to achieve better outcomes. In fact, the Treaty on European Union (TEU) provides for some “sleeping beauties” that have rarely been used. In particular if there is (political) willingness, the Treaties enable the wider use of qualified majority voting in CFSP matters. Moreover, with the entry into force of the Lisbon Treaty, a group of willing Member States could also use enhanced cooperation, which enables the establishment of a new line of policy in CFSP matters.
This book provides a novel approach to the allocation of international responsibility in a multilayered structure like the European Union. Introducing a new concept of functional international responsibility, this study finds that in international economic law the focus of international dispute settlement bodies is not on the responsible party, but on a party best placed to bear responsibility. The book offers a comprehensive analysis of international rules of responsibility and international dispute settlement practice, primarily that of the World Trade Organization and investment arbitration. The study offers a practically applicable approach to questions of international responsibility which will assist international adjudicators, EU and Member States' officials and third country government agents who negotiate economic agreements and are involved in international economic disputes. The book is also relevant to those interested in the governance and accountability questions under the new EU-UK Trade and Cooperation Agreement.
In December 2018, all the media attention was on the adoption of the Global Compact for Migration at the Marrakesh intergovernmental conference. Developed as an international answer to the migration crisis, the Global Compact for Migration became a political symbol for many States, including some EU Member States, in holding an anti-migration discourse. By contrast, the EU has played a great role in shaping the Global Compact for Migration since the beginning of the negotiations in 2017. The gradual lack of support of some EU Member States created a situation where the unity of EU representation on the international scene has been injured. Two years after its adoption, this contribution aims to offer some thoughts on the EU’s role in the process of negotiation and adoption of the Global Compact for Migration. It aims to discuss the (lack of) an EU legal framework for negotiations of international soft law instruments by looking at the case-law of the Court of Justice, notably Council v. Commission (C-660/13).
The relationship between the European Union (EU) and its partners is essentially based on a network of bilateral, regional or multilateral treaties, broadly interpreted by the Court of Justice and analysed by legal doctrine. In recent years, however, there has been a proliferation of European secondary law that contains provisions regulating people, goods or services located outside the EU territory. Its existence raises a set of challenges that have not been examined by legal literature. The first challenge concerns the personal and material scope of the extraterritorial EU secondary law. This study reveals, in particular, the role that the European Union can play on the international scene on account of its unilateral normative activity. The second challenge concerns the implementation of extraterritorial EU secondary law. The extraterritorial nature of EU legislation should require specific implementation acts and procedures taking into consideration the difficulties arising from their extraterritorial nature. This study suggests, however, that their specific nature was not entirely taken into account by EU legislation.
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