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Procedure for the adoption of international agreements

Procedure for the adoption of international agreements

Outline of the Community (European Union) legislation about Procedure for the adoption of international agreements

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

Procedure for the adoption of international agreements

The procedure for the adoption of international agreements concluded between the European Union (EU) and a non-member country or organisation is set out in Article 218 of the Treaty on the Functioning of the European Union (TFEU). It takes place in several phases.

Initiative

The Commission has the initiative, in exercising its general power, to represent the EU. It presents recommendations to the Council for initiating negotiations. In accordance with the ‘comitology’ procedure the recommendations are prepared by the relevant Commission departments in consultation with national experts.

Moreover, when an agreement relates exclusively to the Common Foreign and Security Policy, the recommendations are drawn up by the High Representative for Foreign Affairs and Security Policy.

Negotiation

The Commission conducts negotiations, but acts on the mandate of the Council. Thus, the Council adopts a decision authorising the opening of negotiations. It may address directives to the Commission establishing the framework under which the negotiations must be conducted.

The Commission then conducts negotiations in cooperation with Member States. Their involvement in the process depends on the field in which the agreement relates to:

  • when the agreement relates to a field in which the EU has exclusive competence, the Commission is the sole negotiator, although national experts are closely involved in the proceedings through the special committees in accordance with the rules laid down by the ‘comitology’ procedure;
  • when the agreement relates to a field of shared competence, negotiations are conducted jointly by the Commission and national experts.

The approval or consultation of the European Parliament

The Treaty of Lisbon has increased the role of the European Parliament in the procedure for adopting international agreements considerably. Therefore, the approval of the Parliament is required for:

  • all agreements covering fields in which the ordinary legislative procedure or the special legislative procedure are to be applied within which the approval of the European Parliament was required;
  • association agreements between the EU and third countries;
  • agreements creating a specific institutional framework by organising cooperation procedures (for example, when the agreement in question creates a joint committee with decision-making powers);
  • agreements which have notable budgetary implications for the EU;
  • an agreement on EU membership of the European Convention on Human Rights and Fundamental Freedoms;
  • agreements on the accession of a State to the EU.

For all other agreements, approval by the Parliament is not required, but it must be consulted during the negotiations procedure.

Conclusion

The procedure is in three phases:

  • the Commission signs the text of the agreement but this is subject to subsequent adoption by the Council. It presents the Council with two proposals, one for signing and the other for concluding the agreement.
  • the Council adopts a decision (in some cases a regulation) on signing the agreement. Moreover, the provisional application, which is designed to ensure that the agreement can apply without delay, may stem either from a provision of the decision on signing or from an interim agreement signed in parallel
  • the Council adopts a decision actually concluding the agreement; this is deemed to constitute ratification of the agreement. In the case of hybrid agreements the adoption is accompanied by a procedure for ratifying the agreement within each Member State in accordance with their respective constitutional rules.

As a rule, decisions concluding agreements are adopted by the Council by qualified majority of the votes. However, the Council acts unanimously for:

  • association agreements between the EU and third countries;
  • agreements in areas subject to unanimity.

Furthermore, Article 207 of the Treaty on the Functioning of the EU adds two other specific cases in which the Council may act unanimously:

  • agreements in the field of trade in cultural and audiovisual services;
  • agreements in the field of trade in social, education and health services.

Consultation of the Court of Justice

The Court may be asked by the Council, the Commission, the European Parliament or a Member State to verify the validity of an agreement – both the formal validity (compliance with the relevant adoption procedure) and the substantive validity (compliance with the acquis). If the Court’s opinion is adverse, the agreement has to be revised before it can enter into force.

Atypical acts

Atypical acts

Outline of the Community (European Union) legislation about Atypical acts

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Institutional affairs > The decision-making process and the work of the institutions

Atypical acts

INTRODUCTION

Atypical acts are acts adopted by the institutions of the European Union (EU). These acts are described as “atypical” because they are not part of the nomenclature of legal acts provided for by the Treaty on the Functioning of the EU (Articles 288 to 292).

There is therefore a wide variety of atypical acts. Some are provided for by other provisions of the founding Treaties of the EU, while others have been developed by institutional practice.

Atypical acts are differentiated by their application, which is generally political. However, some may be binding, but this remains limited to the EU’s institutional framework.

Atypical acts provided for by the Treaties

The EU institutions’ Rules of Procedure are atypical acts. The founding Treaties provide that the EU institutions shall adopt their own Rules of Procedure.

The Rules of Procedure lay down the organisation, operation and internal rules of procedure of the EU institutions. They have binding effect only for the institution concerned.

The founding Treaties also provide for other types of act adopted in the context of political dialogue between the EU institutions. These acts are essentially intended to facilitate work and cooperation between the institutions. For example, in the context of the procedure for the adoption of international agreements, the Council must send negotiating guidelines to the Commission for the negotiation of the agreements.

The institutions may also go further by organising their cooperation by means of interinstitutional agreements. These types of agreement are also atypical acts. They may have binding effect, but only for the institutions which have signed the agreement.

Atypical acts not provided for by the Treaties

Each of the EU institutions has developed a series of instruments in the context of its own activity.

For example, the European Parliament expresses some of its political positions at international level by means of resolutions or declarations. Similarly, the Council regularly adopts conclusions, resolutions or guidelines following its meetings. These acts essentially express the institutions’ opinion on certain European or international issues. They have general application but do not have binding effect.

The Commission also adopts several atypical acts which are specific to it. These are communications, which generally present new policy programmes. The Commission also adopts green papers which are intended to launch public consultations on certain European issues. It uses these to gather the necessary information before drawing up a legislative proposal. Following the results of the green papers, the Commission sometimes adopts white papers setting out detailed proposals for European action.