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International agreements constitute a category of legal act within the European Union (EU). They are concluded by the EU acting alone or jointly with Member States depending on the provisions of the founding Treaties.
With the entry into force of the Treaty of Lisbon, the European Union (EU) acquired legal personality. It is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf.
These international agreements have legal effects in the internal law of the EU and the Member States. Moreover, the founding Treaties of the EU lay down the procedures by which the EU can conclude international agreements.
International agreements are the result of a consensus between the EU on the one hand and a third country or third-party organisation on the other hand. These agreements create rights and obligations for the European institutions and Member States. They become part of the European legal order on the date of their entry into force or on the date that they specify.
Legally, international agreements are secondary conventions and agreements and must therefore comply with the founding Treaties of the EU. However, they have greater value than “unilateral” secondary acts, i.e. acts adopted unilaterally by the European institutions (regulations, directives, decisions, etc.).
External competences of the EU
The external competences of the EU are defined in Article 216 of the Treaty on the Functioning of the EU. The EU may conclude international agreements:
- in the cases provided for by the founding Treaties;
- where provided for in a legally binding act;
- where the conclusion of an agreement is necessary in order to achieve one of the objectives of the EU, even in the absence of internal European legislation;
- where the conclusion of the agreement is likely to affect common rules adopted by the EU in internal law. Thus, where the EU has adopted common rules for the implementation of a policy, Member States are no longer entitled to enter into obligations with third countries affecting those rules.
Exclusive competence and shared competence
The division of competences between the EU and Member States is also expressed at international level. Where the EU negotiates and concludes an international agreement, it has either exclusive competence or competence which is shared with Member States.
Where it has exclusive competence, the EU alone has the power to negotiate and conclude the agreement. Moreover, Article 3 of the Treaty on the Functioning of the EU specifies the areas in which the EU has exclusive competence to conclude international agreements.
Where its competence is shared with Member States, the agreement is concluded both by the EU and by the Member States. It is therefore a mixed agreement to which Member States must give their consent. The areas in which competences are shared are defined in Article 4 of the Treaty on the Functioning of the EU.