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

Description

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 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