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The European Union in international environmental negotiations: a legal perspective on the internal decision-making process

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Abstract

From an EU point of view, most international environmental agreements are mixed. This means that both the European Community (EC) and its member states are party to the agreement. As the participation of the EC in international negotiations and agreements is properly arranged by the Treaty establishing the European Community, but the EU member states’ participation is not legally organized on the EU level, the internal decision-making process regarding mixed agreements is rather complicated. Insights into this process are needed to understand the representation and the role of the European Union in international environmental negotiations. This article clarifies the legal framework of the EU decision-making process regarding such negotiations.

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Notes

  1. However, some legal scholars state that the European Union has a de facto legal international personality. They interpret articles 24 and 38 TEU (Treaty of the European Union), which provide the Council to power to conclude agreements in second and third pillar issues, as a particular form of international legal personality. This is, however, not the common interpretation (Verwey, 2004).

  2. In its case Reparation for Injuries—on the international legal personality of the UN—the International Court of Justice states that an international organization, to which rights and obligations are conferred that are different from those of the member states, possesses international legal personality and the capacity to operate on the international scene.

  3. Article 174§4 TEC reads as follows: ‘‘Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organizations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300. The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.’’

  4. Contrary to the TEC, the Treaty establishing the European Atomic Energy Community (Euratom) (1957) makes reference to mixed agreements. Article 103 of this Treaty reads: ‘‘Agreements [...] to which, in addition to the Community, one or more Member States are parties, [...]’’. Such references cannot be found in the TEC.

  5. The procedures described in article 300 TEC (and the rationale behind it) developed from article 133 TEC, regulating the common commercial policy. However, two other articles in EU primary law should be mentioned as well. Firstly, article 111 TEC specifies the decision-making process for external relations in monetary affairs. Article 111 TEC corresponds to article 300 TEC as far as it is also the Council that decides on authorization and ratification (Eeckhout, 2004; Lenaerts et al., 2005). However, there are some major differences. Article 111 TEC does not determine to whom the negotiation autonomy has to be delegated. The Council may choose autonomously the EC negotiator. The main difference with article 300 TEC is that the Commission is not granted the negotiation autonomy in any case (Pocar, 2002; Verwey, 2004). The EC negotiator has to carry out a common European position and the Commission has to be involved in the negotiations (Eeckhout, 2004). Article 111 TEC provides a role for the European Central Bank, which has to be consulted and which shares the right of initiative with the Commission in monetary affairs. Secondly, article 24 TEU lays down the decision-making process regulations on external relations in non-communautary affairs, namely CFSP and JHA (by means of article 38 TEU). During the authorizing stage, the Council decides on an authorization to the Presidency, assisted by the Commission. In practice, however, the High Representative for the CFSP is also authorized (Lenaerts et al., 2005; Verwey, 2004). As in article 300 TEC, the initiative for ratification starts with the negotiator (the Presidency), after which the Council decides on ratification (Eeckhout, 2004).

  6. Here, the ‘‘Commission’’ is understood as the ‘‘College of Commissioners’’. As a consequence, the Commission’s proposal submitted to the Council has to be supported by a majority of the Commissioners.

  7. The member states even have a legal instrument to push the Commission to take legislative initiatives, as article 208 TEC states that ‘‘[t]he Council may request the Commission to [...] submit to it any appropriate proposals.’’

  8. ‘‘WPIEI’’ is the general term for all Council Working Groups dealing with international environmental issues. Depending on the issue discussed, one speaks about WPIEI Climate Change, WPIEI Biosafety, WPIEI Biodiversity, etc.

  9. The decision on authorization is usually taken as follows: ‘‘The European Community will participate in the negotiation of a Convention on [...]; the Commission will conduct these negotiations on behalf of the European Community for matters covered by Community competence, in consultation with a special committee appointed by the Council to assist it in this task and within the framework of the appended negotiating directives; and with regard to matters under the draft Convention which fall partly within the jurisdiction of the Community and partly within the jurisdiction of the Member States, the Presidency, the Commission and the Member States shall ensure close cooperation during the negotiating process (by means of coordinating their views).’’ (Thieme, 2001)

  10. The decision on the mandate is usually taken as follows: ‘‘The Commission shall ensure that the provisions of the draft Convention on [...] are consistent with relevant Community legislation and with the objectives of Community environmental policy. The Commission shall ensure that the draft Convention contains appropriate provisions enabling the Community to become a Contracting Party to the Convention. The Commission shall report to the Council on the outcome of the negotiations and, when appropriate, on any problem that may arise during the negotiations.’’ (Thieme, 2001)

  11. This name has been derived from article 133 TEC, regulating the decision-making process for trade policies.

  12. Article 300§4 TEC provides the possibility for the Commission to ratify (‘‘conclude’’) international agreements, after authorization by the Council (Verwey, 2004). The idea is to avoid that every little amendment or change of an agreement has to pass through the standard procedure of article 300 TEC (Macleod et al., 1998). This exception can only be used for concluding agreements, which amend existing treaties if this has been foreseen by the Council; agreements with other international organizations; agreements on the privileges and immunities of Commission delegations in third countries; and general administrative agreements (Lenaerts et al., 2005; Macleod et al., 1998; Pocar, 2002). However, Eeckhout notes that its application is often unclear (Eeckhout, 2004).

  13. As the international agreement is always published in the Official Journal as an appendix to the decision, it becomes part of the internal EC legal order.

  14. The Luns procedure dealt with association agreements, the Westerterp procedure with trade agreements.

  15. For instance, trade agreements are concluded on the basis of article 133 TEC juncto article 300 TEC, and transport agreements on the basis of article 71 TEC juncto article 300 TEC or article 80 TEC juncto article 300 TEC.

  16. These other policy areas are: article 37 TEC (agriculture), articles 71 and 80 TEC (transport), article 95 TEC (internal market), article 133 TEC (trade), article 152 TEC (public health policy), article 153 TEC (consumer protection), article 157 TEC (industry), articles 163–173 TEC (research and development), articles 177–181 TEC (development co-operation), and article 310 TEC (association agreements) (Leefmans, 1998; Macrory & Hession, 1996). Depending on which combinations of legal bases is used, both the decision-making rule in the Council and the degree of involvement of the European Parliament may vary. For a comprehensive overview, see (Leefmans, 1998, pp. 99–100).

  17. The environmental issues falling under the unanimity rule are provisions primarily of a fiscal nature; measures concerning town and country planning, land use with the exception of waste management and measures of a general nature, and management of water resources; and measures significantly affecting a member state’s choice between different energy sources and the general structure of its energy supply. QMV is applied for all other environmental issues.

  18. See particularly Ruling 1/78 (IAEA/Euratom Case), Opinion 2/91 (ILO), and Opinion 1/94 (WTO).

  19. The distinction between the collectivity of member states and the member states as individual actors is important because side-payments and package-deals may play a role during ratifications in the Council (the collectivity of member states) and not during ratifications on the different national levels.

Abbreviations

AETR:

European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport

CFSP:

Common Foreign and Security Policy

Coreper:

Comité des Représentants Permanents

EC:

European Community

ECJ:

European Court of Justice

EEC:

European Economic Community

EP:

European Parliament

EU:

European Union

IAEA:

International Atomic Energy Agency

ILO:

International Labour Organization

JHA:

Justice and Home Affairs

MEP:

Member of European Parliament

QMV:

Qualified Majority Voting

SEA:

Single European Act

TEC:

Treaty establishing the European Community

TEU:

Treaty of the European Union

UNCTAD:

United Nations Conference on Trade and Development

WPIEI:

Working Party on International Environmental Issues

WTO:

World Trade Organization

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  1. Institute for International and European Policy, Research, University of Leuven, E. Van Evenstraat 2B, Leuven, 3000, Belgium

    Tom Delreux

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Delreux, T. The European Union in international environmental negotiations: a legal perspective on the internal decision-making process. Int Environ Agreements 6, 231–248 (2006). https://doi.org/10.1007/s10784-006-9015-1

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