1
Working Paper No. 201 – May 2018
THE PROVISIONAL APPLICATION OF THE EU’S MIXED
TRADE AND INVESTMENT AGREEMENTS
Andrei Suse
Jan Wouters
2
THE PROVISIONAL APPLICATION OF THE EU’S MIXED
TRADE AND INVESTMENT AGREEMENTS
Andrei Suse
Jan Wouters
Abstract
This contribution seeks to provide clarity with respect to certain legal questions that have
recently emerged in connection to the provisional application of the EU’s mixed trade and
investment agreements. Thus, the EU may only provisionally apply those parts of a mixed
agreement falling within the scope of its competences. A Member State’s notification to the
other parties of the agreement of its refusal or failure to ratify the agreement does not preclude,
as a matter of international law, the provisional application of the agreement by the EU; nor
can Member States unilaterally terminate such provisional application. In order to discontinue
the EU’s provisional application of a mixed agreement, an act of the EU itself is needed.
However, an argument can be made that where a Member State permanently and definitively
fails to ratify a mixed agreement, the EU is under an obligation, as a matter of EU law, to
terminate the provisional application of that agreement.
Keywords
European Union - Trade and Investment Agreements - Mixed Agreements - Provisional
Application
Authors
Andrei Suse is a Doctoral Fellow at Leuven Centre for Global Governance Studies, KU
Leuven.
Prof. Dr. Jan Wouters is Full Professor of International Law and International Organizations,
Jean Monnet Chair ad personam and Director of the Leuven Centre for Global Governance
Studies and the Institute for International Law, KU Leuven.
Address for correspondence
Andrei.Suse@kuleuven.be
Jan.Wouters@ggs.kuleuven.be
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THE PROVISIONAL APPLICATION OF THE EU’S MIXED
TRADE AND INVESTMENT AGREEMENTS
Andrei Suse
Jan Wouters
1. INTRODUCTION ....................................................................................................................................... 4
2. RELEVANT EU LAW AND PRACTICE .......................................................................................................... 8
3. RELEVANT INTERNATIONAL LAW ........................................................................................................... 16
4. PROVISIONAL APPLICATION AND A MEMBER STATE’S REFUSAL OR FAILURE TO RATIFY ....................... 17
5. CONCLUSION ......................................................................................................................................... 22
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THE PROVISIONAL APPLICATION OF THE EU’S MIXED TRADE AND
INVESTMENT AGREEMENTS
1. INTRODUCTION
In keeping with a longstanding international treaty practice, the European Union (‘EU’ or
‘Union’) may provisionally apply its international agreements pending their entry into force.
Indeed, the Union consistently follows such a practice, particularly with respect to so-called
mixed agreements,
1
which may take several years to enter into force. The delay is due to the
fact that all EU Member States are parties to the Union’s mixed agreements, which means
that, typically, the agreement cannot definitively enter into force before all parties, including
the 28 Member States, have ratified it.
2
As the ratification process at national level can be
lengthy, it is needless to say that where an agreement requires the ratification of all parties for
entering into force, the more parties to an agreement, the longer it will take for it to go into
force. An EU mixed agreement will normally involve at a minimum the Union and all its Member
States, on the one hand – sometimes collectively referred to as the ‘EU Party’ in the text of
the agreement – and one third state, on the other hand. To illustrate the size of the problem,
the EU’s Free Trade Agreement (FTA) with Korea – a mixed agreement – entered into force
more than five years after it was signed – while it was signed on 6 October 2010, it only entered
into force on 13 December 2015.
3
An even more dramatic example is the European Economic
Community’s (EEC) Agreement on Co-operation and Customs Union with San Marino, which
took more than 10 years to enter into force. It was signed on 16 December 1991
4
and went
into force on 1 April 2002.
5
The mechanism of provisional application mitigates the problem
as it allows for the agreement to be applied immediately after signature.
Although the following analysis is relevant for the EU’s mixed agreements more generally, in
this contribution we focus only on the provisional application of the Union’s mixed trade and/or
1
A mixed agreement is one to which not only the EU is a party, but also its Member States. Thus, mixed agreements
“are concluded by the EU and its Member States, acting jointly, rather than the EU simply acting on its own” (Piet
Eeckhout, EU External Relations Law, Oxford University Press, 2
nd
edition, 2011, p. 212; see also Allan Rosas,
The European Union and Mixed Agreements, in Alan Dashwood and Christophe Hillion (eds), The General Law of
E.C. External Relations, Sweet & Maxwell, 2000, p. 200).
2
Some of the EU’s mixed agreements can, nonetheless, enter into force before ratification by all Member States.
This is the case with many of the EU’s multilateral mixed agreements which, as often is the case with multilateral
agreements, can enter into force once a number of instruments of ratification have been deposited (Guillaume Van
Der Loo and Ramses A. Wessel, The Non-Ratification of Mixed Agreements: Legal Consequences and Solutions,
54 Common Market Law Review, 2017, Issue 3, pp. 742 and 743; see also Robert Kolb, The Law of Treaties: An
Introduction, Edward Elgar, 2016, p. 51 and n. 122).
3
A list of the EU’s trade and investment agreements, as well as information on dates of signature, provisional
application and entry into force may be found on the website of the European Commission’s Directorate General
for Trade: http://ec.europa.eu/trade/policy/countries-and-regions/agreements/#_other-countries (visited 14 April
2018)
4
Council Decision 2002/245 (EC) of 28 February 2002 on the conclusion of an agreement on co-operation and
customs union between the European Economic Community and the Republic of San Marino and of the Protocol
thereto following the enlargement which took effect on 1 January 1995, OJ L 84, 28 March 2002, p. 41.
5
Council of the European Union, Signature and conclusion of a protocol to the agreement on cooperation and
customs union between the community and San Marino, regarding the participation of Bulgaria and Romania,
following their accession to the European Union, press release, 20 November 2007,
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/97175.pdf (visited 14 April 2018).
5
investment agreements
6
and other EU mixed agreements featuring a strong common
commercial policy component such as association agreements. More specifically, we seek to
answer the question whether a Member State’s failure or refusal to ratify a mixed trade and
investment agreement would prevent or require the discontinuation of its provisional
application by the Union. Even though the EU has so far managed to avoid such a scenario,
the question is not merely hypothetical. A first example illustrating its practical relevance can
be found in the process of provisionally applying the Agreement on Trade, Development and
Cooperation (‘TDCA’) between the European Community (‘EC’) and South Africa, signed on
11 October 1999. Shortly before the scheduled starting date of provisional application (1
January 2000)
7
Italy reportedly threatened not to ratify the agreement and argued that its
refusal to do so precluded not only its entry into force, but also the provisional application by
the EC of the trade part of the agreement.
8
Italy and Greece (the latter having joined the
former) eventually fell back in line after extracting further concessions from South Africa.
9
Another illustration of the problem can be found in the ratification process of the Association
Agreement with Ukraine, the trade part of which was provisionally applied from 1 January
2016
10
to 1 September 2017 when the agreement definitively entered into force.
11
The
troublesome circumstances surrounding the Netherlands’ ratification of the Association
Agreement provided us with an opportunity to ponder what would have been the
consequences of the Netherlands’ failure to ratify for the provisional application of the trade
part of the Association Agreement. The negative result of a non-binding referendum held in
the Netherlands in April 2016 called into question the Dutch government’s ability to ratify it.
Fortunately, the Dutch legislature eventually managed to approve the Association Agreement
in the first half of 2017,
12
but only after the adoption of a ‘Decision of the Heads of State or
Government of the 28 Member States of the European Union, meeting within the European
Council’.
13
Seeking to put to rest the concerns of the Dutch voters,
14
the Decision mainly stated
6
Throughout this contribution the phrase ‘mixed trade and investment agreements’ refers to agreements that cover
either both trade and investment, or only one of the two areas.
7
Agreement in the Form of an Exchange of Letters concerning the provisional application of the Agreement on
Trade, Development and Cooperation between the European Community and its Member States, of the one part,
and the Republic of South Africa, of the other part, OJ L 311, 4 December 1999, p. 2.
8
Alan Rosas, The Future of Mixity, in Christophe Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited:
The EU and its Member States in the World, Hart, 2010, pp. 367-370.
9
Ibid.
10
European Commission, The Trade Part of the EU-Ukraine Association Agreement becomes operational on 1
January 2016, press release, 31 December 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1425
(visited 14 April 2018). Other parts of the agreement had already been provisionally applied since November 2014
(ibid.).
11
European Commission, EU-Ukraine Association Agreement fully enters into force, press release, 1 September
2017, http://europa.eu/rapid/press-release_IP-17-3045_en.htm (visited 14 April 2018).
12
Statement by Jean-Claude Juncker, President of the European Commission, on the vote in the Dutch Senate on
the ratification of the Association Agreement between the European Union and Ukraine, 30 May 2017,
http://europa.eu/rapid/press-release_STATEMENT-17-1461_en.htm (visited 14 April 2018). See also Dutch
senators approve compromise on the EU-Ukraine pact, Euractiv, 31 May 2017,
https://www.euractiv.com/section/elections/news/dutch-senators-approve-compromise-on-eu-ukraine-pact/
(visited 14 April 2018).
13
Decision of the Heads of State or Government of the 28 Member States of the European Union, meeting within
the European Council, on the Association Agreement between the European Union and the European Atomic
Energy Community and their Member States, of the one part, and Ukraine, of the other part, annexed to the
European Council Conclusions on Ukraine, 15 December 2016, http://www.consilium.europa.eu/media/24151/15-
euco-conclusions-ukraine.pdf (visited 14 April 2018).
14
The Decision explicitly took “note of the outcome of the Dutch referendum on 6 April 2016 on the bill approving
the EU-Ukraine Association Agreement and of the concerns expressed prior to the referendum as conveyed by the
Prime Minister of the Kingdom of the Netherlands” (second recital of preamble). Moreover, according to a note
posted on the website of the Government of the Netherlands the day following the adoption of the Decision, it was
the Dutch government’s view “that this legally binding solution addresses the concerns expressed in the public
6
what the Association Agreement did not provide for.
15
Had the Netherlands failed to ratify the
Association Agreement, would that have required the EU, as a matter of legal obligation, to
discontinue the provisional application? Or would it have had no legal consequences for the
provisional application, as stated by certain scholars at the time of the referendum?
16
Finally, the signing of the controversial EU-Canada Comprehensive Economic and Trade
Agreement (‘CETA’) in October 2016 has also brought to the fore questions related to the
provisional application of mixed agreements. The so-called ‘CETA saga’, referring to the
adventures and struggles preceding the signing of the agreement,
17
has prompted the
question whether a Member State would be able to unilaterally terminate the provisional
application of CETA – partially provisionally applied since 21 September 2017.
18
Following
certain statements made by four Member States at the meeting of the Council of the European
Union (‘the Council’) where the signing and provisional application of CETA was decided,
Members of the European Parliament questioned the European Commission (‘the
Commission’) on whether it was possible for a Member State to discontinue the provisional
application of CETA.
19
Furthermore, three German NGOs sent a letter to Trade Commissioner
Cecilia Malmström in December 2016 inquiring whether a Member State could unilaterally
terminate the provisional application of CETA or whether only the EU institutions have this
power.
20
In spite of the fact that the common commercial policy is an EU exclusive competence, and
notwithstanding the latest expansion of that competence effected by the Lisbon Treaty, most
of the EU’s trade and investment agreements have thus far been concluded as mixed
agreements.
debate in the run-up to the consultative referendum” (Government approves bill for entry into force of EU – Ukraine
Association Agreement, 16 December 2016, https://www.government.nl/latest/news/2016/12/16/government-
approves-bill-for-entry-into-force-of-eu-ukraine-association-agreement, visited 14 April 2018). A statement in a
Council press release also confirmed that the December 2016 ”decision by the EU heads of state and governments
paved the way for all EU Member States to confirm the ratification of the agreement” (Ukraine: Council adopts EU-
Ukraine Association Agreement, 11 July 2017, http://www.consilium.europa.eu/en/press/press-
releases/2017/07/11-ukraine-association-agreement/, visited 14 April 2018).
15
For instance, the Decision clarified that the Association Agreement did “not confer on Ukraine the status of a
candidate country for accession to the Union” (para. A) and that it did not “contain an obligation for the Union or its
Member States to provide collective security guarantees or other military aid or assistance to Ukraine” (para. B).
For a brief analysis of the nature and legal effects of the Decision see Van der Loo and Wessel, supra n. 2, pp. 765
– 768.
16
Guillaume Van der Loo, The Dutch Referendum on the EU – Ukraine Association Agreement: Legal options for
navigating a tricky and awkward situation, Center for European Policies Studies, CEPS Commentary, 8 April 2016,
p. 3, https://www.ceps.eu/publications/dutch-referendum-eu-ukraine-association-agreement-legal-options-
navigating-tricky-and (visited 14 April 2018). See also, Peter van Elsuwege, What will happen if the Dutch vote ‘No’
in the Referendum on the EU - Ukraine Association Agreement?, Verfassungsblog, 10 February 2016,
http://verfassungsblog.de/what-will-happen-if-the-dutch-vote-no-in-the-referendum-on-the-eu-ukraine-association-
agreement/ (visited 14 April 2018).
17
Most notably, the Belgian Region of Wallonia almost derailed the signature of CETA in the autumn of 2016
(Christian Oliver, Hans von der Burchard and Simon Marks, How the EU threw away its trade powers, Politico, 19
October 2016, updated on 21 October 2016, http://www.politico.eu/article/walloon-rebellion-threatens-
commissions-trade-powers/, visited 14 April 2018).
18
European Commission, EU-Canada trade agreement enters into force, press release, 20 September 2017,
http://europa.eu/rapid/press-release_IP-17-3121_en.htm (visited 14 April 2018).
19
Infra pp. 20 and 21, and n. 103.
20
Letter to Trade Commissioner Cecilia Malmström from Compact, Foodwatch and Mehr Demokratie, 20
December 2016,
http://ec.europa.eu/carol/?fuseaction=download&documentId=090166e5af12d223&title=Letter_to%20Commissio
ner%20Malmstr%C3%B6m_161220.pdf (visited 14 April 2018).
7
Following Opinion 2/15, delivered by the Court of Justice of the European Union (‘CJEU’ or
‘the Court’) on 16 May 2017, it seems that the Union’s future trade and investment agreements
will either continue to be mixed, or that they will have to exclude from their scope portfolio
investment – as far as investment protection is concerned – and investor-state dispute
settlement (‘ISDS’) in order to allow for their conclusion as ‘EU-only’ agreements. In Opinion
2/15, the Court held that portfolio investment protection and ISDS were not covered by the
EU’s exclusive competences and, therefore, the EU could not conclude the recently negotiated
FTA with Singapore as an ‘EU-only’ agreement.
21
Consequently, the agreement with
Singapore was split into two agreements: an FTA, which the Commission is now proposing to
be signed as an ‘EU-only’ agreement,
22
and an Investment Protection Agreement (‘IPA’),
which is to be signed as a mixed agreement.
23
It remains to be seen if the Council will agree
with the Commission’s proposal to sign the FTA as an ‘EU-only’ agreement.
24
As the same
technique was chosen with regard to the Economic Partnership Agreement (‘EPA’) with Japan
– while the EPA now awaits to be signed as an ‘EU-only’ agreement,
25
negotiations for a
separate IPA are still ongoing –
26
it seems that, if successful, this will be Commission’s new
default approach to the negotiation and conclusion of trade and investment agreements.
Nonetheless, agreements whose scope includes matters that go beyond trade and investment
will continue to be concluded as single mixed agreements, as opposed to concluding two
separate agreements for trade and investment respectively.
27
In Section 2 of our contribution we survey and analyze the relevant EU law and internal
practice with regard to the provisional application of international trade and investment
agreements. In addition, we analyze the treaty clauses regulating the provisional application
of several of the EU’s recent trade and investment agreements. In Section 3, we make a few
observations regarding the general international law applicable to the provisional application
of treaties. In Section 4, we consider the consequences that a Member State’s failure or refusal
to ratify an EU mixed trade and investment agreement might have for the provisional
application of that agreement. Finally, we make our concluding remarks in Section 5.
21
Opinion 2/15, 16 May 2017, paras. 243 – 244 and 292 – 293.
22
Proposal for a Council Decision on the signing, on behalf of the European Union, of the Free Trade Agreement
between the European Union and the Republic of Singapore, 18 April 2018, COM(2018) 197 final.
23
Proposal for a Council Decision on the signing, on behalf of the European Union, of the Investment Protection
Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore of
the other part, 18 April 2018, COM(2018) 195 final.
24
According to the Commission, its proposed solution is based on “wide-ranging discussions […] with the Council
and the European Parliament”. (ibid., p. 3)
25
Proposal for a Council Decision on the signing, on behalf of the European Union. of the Economic Partnership
Agreement between the European Union and Japan, 18 April 2018, COM(2018) 193 final.
26
European Commission, Trade: European Commission proposes signature and conclusion of Japan and
Singapore Agreements, press release, 18 April 2018, http://europa.eu/rapid/press-release_IP-18-3325_en.htm
(visited 14 April 2018).
27
See, for instance, the recently negotiated EU – Mexico Global Agreement. As explained on the Commission’s
website, “[t]he trade agreement with Mexico is part of a wider Global Agreement, which covers areas for which both
the EU and EU Member States are responsible not just the EU” – meaning that “it is a so-called ‘mixed agreement’
as opposed to an ‘EU only’ agreement”. (The EU – Mexico trade agreement explained,
http://ec.europa.eu/trade/policy/in-focus/eu-mexico-trade-agreement/agreement-explained/, visited 23 April 2018)
8
2. RELEVANT EU LAW AND PRACTICE
Internal procedure
The procedure for the negotiation and conclusion of international agreements between the EU
and third countries is set out in Article 218 of the Treaty on the Functioning of the European
Union (‘TFEU’). As far as trade and investment agreements are concerned, the generally
applicable rules of Article 218 are supplemented by the provisions of Article 207 TFEU, broadly
defining the EU’s Common Commercial Policy and laying down special procedural rules for
the negotiation and conclusion of such agreements. To the extent that the provisions of the
two articles conflict, the special provisions of Article 207 prevail.
28
Whereas the Commission
is typically
29
responsible for conducting the negotiations, most of the formal decision-making
power rests with the Council. Thus, pursuant to Article 218(2), the Council has the power to
authorize the opening of negotiations,
30
issue negotiating directives, authorize the signing of
an agreement, and decide to conclude the agreement – the latter meaning a decision to ratify,
accept, approve or accede to a treaty.
31
In addition to the Council and the Commission, the
European Parliament is also involved in the process, most notably at the conclusion stage.
Normally, the Council may decide to conclude the agreement only after having either obtained
the consent of the Parliament or after having consulted it, depending on the subject matter of
the agreement. In the following cases the Parliament’s consent is required before the
agreement can be concluded: (i) association agreements; (ii) the agreement on the EU’s
accession to the European Convention on Human Rights; (iii) agreements establishing a
specific institutional framework by organizing cooperation procedures; (iv) agreements with
important budgetary implications; and (iv) agreements concerning matters subject to the EU’s
ordinary legislative procedure, or to the special consent legislative procedure. In all other
cases – except where the agreement concerns exclusively the common foreign and security
policy (CFSP) – the Council need not secure the consent of the Parliament, but it must,
nonetheless, consult it. In the case of agreements concerning the CFSP exclusively, neither
consent nor consultation is necessary.
32
Nevertheless, the Parliament must be kept informed
at all stages of the procedure in all cases.
33
As trade and investment agreements concern
matters to which the ordinary legislative procedure applies, the Parliament’s consent is a
prerequisite for their conclusion.
34
28
Article 218(1) reads: “Without prejudice to the specific provision of Article 207, agreements between the Union
and third countries or international organisations shall be negotiated and concluded in accordance with the
following procedure”. In a similar vein, Article 207(3) provides that “[w]here agreements with one or more third
countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the
special provisions of this Article.”
29
In the case of agreements falling within the Common Commercial Policy negotiations are always conducted by
the Commission (Article 207(3) TFEU).
30
The Council decides on the opening of the negotiations upon a recommendation from the Commission, or from
the High Representative of the Union for Foreign Affairs and Security Policy, where the agreement envisaged
relates exclusively or principally to the common foreign and security policy (Article 218(3)).
31
Vienna Convention on the Law of Treaties, Articles 2(b), 14 and 15.
32
Article 218(6) TFEU.
33
Article 218(10) TFEU.
34
According to Article 207(2) TFEU the measures defining the framework for the implementation of the EU’s
Common Commercial Policy are to be adopted by the Parliament and the Council “acting by means of regulations
in accordance with the ordinary legislative procedure”. Hence, trade and investment agreements are of the variety
covering fields to which the ordinary legislative procedure applies. (Eeckhout, supra n. 1, pp. 459 and 203)
9
Between the signature and the entry into force of the agreement – which may or may not
coincide with its conclusion –
35
the EU may apply the agreement at issue, in whole or in part,
on a provisional basis. As provided for in Article 218(5) TFEU, “[t]he Council, on a proposal by
the negotiator, shall adopt a decision authorizing the signing of the agreement and if
necessary, its provisional application before entry into force” (emphasis added). In practice,
the Council may decide on the signing and the provisional application of an agreement either
by means of a single decision addressing both matters, or by way of two separate decisions.
36
The date on which the EU will begin to provisionally apply the agreement will normally depend
on the provisions of the agreement itself. Thus, it has become common for the EU’s trade and
investment agreements to provide that the provisional application will start on the first day of
the month following the date on which the parties notified each other that they had completed
their respective internal procedures necessary for applying provisionally the agreement.
37
Some of the agreements also explicitly give the parties the possibility to determine a different
date of provisional application by mutual consent.
38
Another possibility is that the parties agree
to provisionally apply an agreement by way of a separate agreement which specifies the date
on which the principal agreement will start to be provisionally applied.
39
Although Article 218 TFEU does not require the Council to wait for the European Parliament’s
consent to conclusion before it may decide to authorize the provisional application of the
agreement,
40
there were instances in the past where the Parliament requested that FTAs not
be provisionally applied before it gave its consent.
41
Such was the case with the EU – Korea
FTA. After having secured in 2010 a promise from then Commissioner for Trade, Karel De
Gucht, that the Commission would not propose the provisional application of the FTA with
Korea before the Parliament voted on the agreement, it then made similar requests with
respect to other FTAs.
42
For example, in 2011, it “call[ed] on the Commission and the Council
not to propose any provisional application of the agreement [with India; negotiations are still
ongoing] before the EP has given its consent”.
43
A virtually identical demand may be found in
the Parliament’s ‘Resolution of 17 April 2014 on the state of play of the EU – Vietnam Free
35
By ‘conclusion’ we mean the Council’s decision to ratify the agreement and the subsequent deposit of the
instrument of ratification by the EU. The entry into force of the agreement may occur at a later specified time, or
when all, or a minimum number of parties have ratified it.
36
For instance, in the case of the FTA with South Korea, the Council decided on both signing and provisional
application by way of a single decision (Council Decision 2011/265 on the signing, on behalf of the European Union,
and provisional application of the Free Trade Agreement between the European Union and its Member States, of
the one part, and the Republic of Korea, of the other part, OJ L 127, 14 May 2011, p. 1). In the case of CETA, the
Council adopted two separate decisions (Council Decision 2017/37 on the signing on behalf of the European Union
of the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the
European Union and its Member States, of the other part, OJ L 11, 14 January 2017, p. 1; and, Council Decision
2017/38 on the provisional application of the Comprehensive Economic and Trade Agreement (CETA) between
Canada, of the one part, and the European Union and its Member States, of the other part, OJ L 11, 14 January
2017, p. 1080).
37
Article 15.10(5)(a) of the EU – Korea FTA; Article 30.7(3)(a) of CETA; Article 4.15(4)(a) of the EU – Singapore
IPA; Article 17.15(4)(a) of the EU – Vietnam FTA.
38
Article 30.7(3)(a) of CETA; Article 17.12(4)(a) of the EU – Singapore IPA; Article 4.15(4)(a) of EU – Vietnam
FTA.
39
Agreement in the form of an Exchange of Letters on the provisional application of the Fisheries Partnership
Agreement between the European Union and Solomon Islands, OJ L 190, 22 July 2010, p. 29.
40
Kleimann and Kübek, The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements
in the EU: The Case of CETA and Opinion 2/15, 45 Legal Issues of Economic Integration, 2018, Issue 1, p. 28.
41
Youri Devuyst, European Law and Practice in the Negotiation and Conclusion of International Trade Agreements,
12 Journal of International Business and Law, 2013, Issue 2, pp. 305 and 306.
42
Ibid.
43
European Parliament, Resolution of 11 May 2011 on the state of play in the EU-India Free Trade Agreement
negotiations, para. 36, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2011-
0224+0+DOC+XML+V0//EN (visited 14 April 2018).
10
Trade Agreement’.
44
While these requests concerned individual agreements, the Parliament
has also started making more sweeping demands with respect to all trade agreements. In the
autumn of 2014 the Parliament asked then Commissioner-designate Cecilia Malmström “to
formally commit […] herself to not requesting provisional application of trade agreements
including trade chapters of association agreements before the European Parliament gives its
consent on those agreements”.
45
Commissioner Malmström gave the requested commitment,
though qualified by a caveat: trade agreements would not be provisionally applied before the
Parliament gave its consent, unless considerations related to urgency or the technical
character of the matter made it unwarranted to delay the application. Nonetheless, in such
situations the President of the INTA Committee
46
would be consulted. Her full written response
to the Parliament’s questionnaire reads as follows:
During the last five years a practice has developed not to provisionally apply politically important
trade agreements before the European Parliament has had the opportunity to give its consent.
This was the case for the Free Trade Agreement with Korea, the multiparty trade agreement with
Colombia and Peru and EU – Central America Association Agreement.
Even if the power to decide on provisional application lies with the Council rather than with the
Commission, I agree that this practice should continue. I am ready, when proposing decisions to
sign politically important trade agreements which fall under my responsibility, to ask Council to
delay provisional application until the European Parliament has given its consent. However, we
need certain flexibility in applying such a practice as there will always be occasions where the
urgency of a particular file, or its technical character, mean that it is unwarranted to delay its
application pending the EP's consent. This was the case for the provisional application of the
Association Agreements with Georgia and Moldova, on the one hand, and of very technical
measures such as the adaptation of our international agreements as a result of Croatia's
accession to the EU.
In any event, in such cases I undertake to inform the Chair of the INTA Committee and to seek
his views on such course of action.
47
As illustrated by the aforementioned examples, the Parliament is adamant that it should have
its say before trade agreements are provisionally applied. More recently, it reiterated its
request and even called for an inter-institutional agreement in this regard. Its ‘Resolution of 5
July 2016 on a new forward-looking and innovative future strategy for trade and investment’
read in relevant part:
The European Parliament,
[…]
36. Calls on the Commission not to request provisional application of trade agreements, including
trade chapters of association agreements, before Parliament gives its consent; recalls that it
would seriously undermine Parliament’s rights and create potential legal uncertainty vis-à-vis the
agreement’s other signatory and the economic operators concerned; recalls and welcomes the
Trade Commissioner’s commitments in this regard, but strongly counsels this arrangement to be
formalised in the new inter-institutional agreement;
48
44
European Parliament, Resolution of 17 April 2014 on the state of play of the EU-Vietnam Free Trade Agreement,
para. 1, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-
0458+0+DOC+XML+V0//EN (visited 14 April 2018).
45
Answers to the European Parliament Questionnaire to the Commissioner-Designate Cecilia Malmström,
https://ec.europa.eu/commission/sites/cwt/files/commissioner_ep_hearings/malmstrom-reply_en.pdf (visited 14
April 2018).
46
The European Parliament’s Committee on International Trade.
47
Supra n. 45.
48
European Parliament, Resolution of 5 July 2016 on a new forward-looking and innovative future strategy for
trade and investment, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2016-
0299+0+DOC+XML+V0//EN (visited 14 April 2018).
11
Indeed, as pointed out by Commissioner Malmström in 2014, there seems to be an established
practice to wait for the Parliament’s consent before provisionally applying a trade agreement.
This practice, which apparently started with the EU-Korea FTA,
49
was also followed with
respect to CETA. When the Council adopted its decisions to sign and provisionally apply the
agreement, it also agreed that it would only notify Canada that the EU had completed its
internal requirements and procedures necessary for the provisional application of the
agreement after the Parliament had given its consent.
50
Scope of provisional application: the law
Article 218(5) TFEU is silent as to the scope of provisional application, meaning that, in
principle, the Council is free to decide whether to provisionally apply the agreement in whole
or only in part. Of course, that decision is subject to the constraints imposed by the clauses of
the agreement at issue regulating its provisional application, and/or to the consent of the other
party(ies); for instance, where one party proposes to exclude certain provisions of the
agreement from provisional application, the other party may have the right to object and
prevent provisional application altogether.
51
However, in the case of mixed agreements –
despite the silence of Article 218(5) TFEU on the matter – the Council may only decide to
provisionally apply those parts of the agreement that fall within the EU’s competence.
52
That
is so because the EU’s external action is restrained by the principle of conferral in the same
way as its internal action.
53
Article 5(2) of the Treaty on European Union (‘TEU’) provides that
“the Union shall act only within the limits of the competences conferred upon it by the Member
States in the Treaties”. In line with this reasoning, it has been argued that the EU would be
acting ultra vires if it were to provisionally apply parts of a mixed agreement that fell outside of
its competences.
54
Most importantly, the EU would not be able to secure the implementation
of the provisions of the agreement falling outside of its competences, as it would have no
means of compelling the Member States to implement such provisions; the Commission can
bring infringement proceedings against a Member States for failure to comply with an
49
Laura Puccio, A guide to EU procedures for the conclusion of international trade agreements, brief by the
European Parliamentary Research Service, October 2016, p. 6,
http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/593489/EPRS_BRI(2016)593489_EN.pdf (visited 14
April 2018); Kleimann and Kübek, supra n. 40, p. 28.
50
“The Council agreed that, pursuant to Article 1.2 of the Council Decision on provisional application, the date by
which the notification referred to in Article 30.7(3) of the Agreement is to be sent to Canada shall be 17 February
2017, provided that the European Parliament has given its consent to the Agreement.” (Council Conclusions on
CETA, 28 October 2017, document no. 13887/16, emphasis added,
http://data.consilium.europa.eu/doc/document/ST-13887-2016-INIT/en/pdf, visited 14 April 2018).
51
E.g., Article 30.7(3)(b) of CETA.
52
Frank Hoffmeister, Curse or Blessing? Mixed Agreements in the Recent Practice of the European Union and its
Member States, in Hillion and Koutrakos (eds), supra n. 8, p. 258; Ivan Smyth, Mixity in Practice – A Member State
Practitioner’s Perspective, in Hillion and Koutrakos (eds), op. cit., pp. 313 and 314; Van Der Loo and Wessel, supra
n. 2, p. 754. Compare with Kleimann and Kübek, who argue that the Council could rely on Article 352 of the TFEU
(the so-called “flexibility clause’) to extend the scope of provisional application to also cover the provisions
belonging to the exclusive competences of the Member States (supra n. 40, pp. 27 and 28).
53
Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law, 2
nd
edition, Cambridge University
Press, 2010, p. 637.
54
Wolfgang Weiß, Verfassungsprobleme des Abschlusses und der vorläufigen Anwendung des CETA
Freihandelsabkommens mit Kanada, Stellungnahme zur Öffentlichen Anhörung des Ausschusses für Wirtschaft
und Energie des Deutschen Bundestages am 5 September 2016, pp. 21 – 23, as cited in David Kleimann and
Gesa Kübek, The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the
EU: The Case of CETA and Opinion 2/15, EUI Working Paper 2016/58, p. 17. See also Kleimann and Kübek, supra
n. 40, pp. 27 and 28; and Bundesverfassungsgericht, Application for a preliminary injunction in the “CETA”
proceedings unsuccessful, press release no. 71/2016, 13 October 2016,
https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-071.html (14 April
2018).
12
international agreement that is binding upon the EU only insofar as the breached provisions
are covered by EU competences.
55
Furthermore, the Court’s ruling in Opinion 2/15 that the parts of the EU – Singapore FTA that
fell within the EU’s shared competences “cannot be approved by the European Union alone”
56
seems to carry the implication that the EU can only conclude an international agreement on
its own, without the participation of the Member States, where that agreement falls entirely
within its exclusive competences.
57
If that is so, then it must be that the EU can also only
undertake to provisionally apply those parts of an agreement that are covered by its exclusive
competences. The view that only the parts of the agreement falling within the scope of its
exclusive competences can be provisionally applied by the EU was expressed in a brief of the
European Parliament’s Research Service even before Opinion 2/15 was delivered.
58
However,
the apparent clarity provided by the Court in the said opinion was soon retracted in a
subsequent judgment. The findings of the Court in Opinion 2/15 have been interpreted by
certain scholars as having ‘killed’ the doctrine of facultative mixity.
59
According to this doctrine,
where the agreement falls in part within the scope of the EU’s exclusive competences and in
part within the scope of shared competences, the Council has a choice between concluding
the agreement as mixed or as an ‘EU-only’ agreement.
60
Following the Court’s ruling in
Opinion 2/15, it seemed that every agreement that had elements falling outside the EU’s
exclusive competence was a case of ‘obligatory mixity’.
61
Nevertheless, in its subsequent
judgment in Germany v. Council, the Court hinted that optional mixity was still very much
alive.
62
That being the case, it means that the Council can decide to conclude an agreement
as an ‘EU-only’ agreement even if parts of it fall within the scope of shared competences, and
as long as no parts pertain to the Member States’ exclusive competences. In such a case, it
is evident that the entire agreement can be provisionally applied by the EU. In any event, for
the provisional application of the parts of a mixed agreement falling within the exclusive
competences of Member States (a case of compulsory mixity), an act of each Member State
would be required by which it would communicate its consent to the other parties to be
provisionally bound by the agreement in its own name, to the extent the provisional application
clause of the agreement allows for this.
63
While pondering the implications of facultative mixity for the mechanism of provisional
application is certainly interesting from an academic perspective, the matter may in fact have
limited practical relevance, despite the Court’s recent implicit reference to it.
64
As former ECJ
55
Eeckhout, supra n. 1, p. 260.
56
Opinion 2/15, 16 May 2017, paras. 243 – 244 and 292 – 293.
57
Laurens Anskermit, Opinion 2/15 and the Future of Mixity and ISDS, European Law Blog, 18 May 2017,
http://europeanlawblog.eu/2017/05/18/opinion-215-and-the-future-of-mixity-and-isds/#more-3655 (visited 14 April
2018).
58
Wilhelm Schöllmann, Comprehensive Economic and Trade Agreement (CETA) with Canada, brief by the
European Parliamentary Research Service, January 2017, p. 10, http://www.europarl.europa.eu/EPRS/EPRS-
Briefing-595895-Comprehensive-Economic-Trade-Agreement-Canada-rev-FINAL.pdf (visited 14 April 2018).
59
Anskermit, supra n. 57; Kleimann and Kübek, supra n. 40, p. 42.
60
Rosas, supra n. 1, pp. 203-207, 205 and 206 in particular. See also Kleimann and Kübek, supra n. 40, pp. 20
and 21; Anskermit, supra n. 57.
61
Anskermit, supra n 57.
62
C-600/14, Germany v. Council, 5 December 2017, paras. 67 and 68. See also Hannes Lenk and Szilárd Gáspár-
Szilágyi, Case C-600/14, Germany v Council (OTIF). More Clarity over Facultative ‘Mixity’?,
http://europeanlawblog.eu/2017/12/11/case-c-60014-germany-v-council-otif-more-clarity-over-facultative-mixity/
(visited 14 April 2018).
63
Van Der Loo and Wessel, supra n. 2, pp. 754 – 755 and nn. 99 – 100.
64
Supra n. 62.
13
judge Christiaan Timmermans remarked a few years back, “Member States have, as a rule,
been unwilling to allow the EC to exercise non-exclusive external competences”.
65
This still
seems to hold true today, as illustrated by the recent disputes between the Commission and
the Council on the mixity of CETA and the EU-Singapore FTA.
Scope of provisional application: the practice
As for the EU’s treaty practice, some of its trade and investment agreements contemplate the
provisional application of the agreement in its entirety, allowing, nonetheless, to designate
certain parts that would not be provisionally applied, whereas other agreements provide for
partial provisional application only. A representative example of the former category may be
found in paragraphs (a) and (b) of Article 4.15(4) of the EU – Singapore Investment Protection
Agreement (‘IPA’), which reads as follows:
(a) This Agreement shall be provisionally applied from the first day of the month following the date
on which the Union and Singapore have notified each other of the completion of their respective
relevant procedures. The Parties may by mutual agreement fix another date.
(b) In the event that certain provisions of this Agreement cannot be provisionally applied, the Party
which cannot undertake such provisional application shall notify the other Party of the provisions
which cannot be provisionally applied. Notwithstanding subparagraph 4(a), provided the other
Party has completed the necessary procedures and does not object to provisional application
within ten days of the notification that certain provisions cannot be provisionally applied, the
provisions of this Agreement which have not been notified shall be provisionally applied the first
day of the month following the notification.
Quite clearly, the first paragraph requires the provisional application of the agreement in its
entirety once the requisite internal procedures of the parties have been completed. However,
that requirement is qualified by the second paragraph, which grants the parties the right not to
apply certain parts of the agreement, subject to the consent of the other party. Virtually
identical provisions can be found in the EU – Korea FTA
66
and in the FTA negotiated with
Vietnam.
67
While the corresponding provisions of CETA
68
are worded slightly differently, and
are somewhat more complex, their normative content is to a large extent the same as that of
Article 4.15(4) of the EU – Singapore IPA.
According to the Council’s practice, the parts of the agreement which the EU does not intend
to provisionally apply are specified in the decision authorizing the provisional application.
69
Where the agreement is mixed, the provisions of the agreement that are not covered by EU
competence should be excluded from provisional application. Quite interestingly, in the case
of CETA, the Commission initially proposed the provisional application of the agreement in its
65
Christiaan Timmermans, Opening Remarks – Evolution of Mixity since the Leiden 1982 Conference, in Hillion
and Koutrakos (eds), supra n. 8, p. 5.
66
Article 15.10(5), paras. (a) and (b).
67
Article 17.15(4), paras. (a) and (b).
68
Article 30.7(3), paras. (a) and (b).
69
See, for instance, the Council Decision on the signing and provisional application of the EU – Korea FTA, supra
n. 36, Article 3; the Council Decision 2012/735 on the signing, on behalf of the Union, and provisional application
of the Trade Agreement between the European Union and its Member States, of the one part, and Colombia and
Peru, of the other part, OJ L 354, 21 December 2012, p. 1, Article 3; and the Council Decision on the provisional
application of CETA, supra n. 36, Article 1.
14
entirety,
70
despite having agreed, albeit reluctantly, to it being signed as mixed.
71
However, it
seems that the Council had different designs. In the end, the Council’s decision excluded from
provisional application certain parts of CETA, among which: most of the provisions concerning
investment protection and ISDS; the remainder of the chapter on investment insofar as it
applies to portfolio investment; and certain of the provisions concerning trade in financial
services, again, insofar as they apply to portfolio investment.
72
These are the principal matters
found by the Court in Opinion 2/15 to be outside of the scope of the EU’s exclusive
competences, and thus belonging to the area of shared competences. The Council’s position
that only those parts of the agreement pertaining to the EU’s competences would be
provisionally applied was made explicit in its decision. Thus, a recital was added to the
preamble of the decision reading the following: “Parts of the Agreement falling within the
competence of the Union may be applied on a provisional basis, pending the completion of
the procedures for its conclusion”.
73
If that was not enough, the Council also adopted a
statement – at the same meeting where the decision was adopted – “confirm[ing] that only
matters falling within the scope of EU competence will be subject to provisional application”.
74
Based on what was actually excluded from provisional application, it would seem that by ‘EU
competence’, the Council really meant ‘exclusive EU competence’.
75
Examples of treaty clauses providing for partial provisional application may be found in the
EU’s recent association agreements. For the sake of illustration, we will consider Article 464
of the EU – Moldova Association Agreement, which reads in relevant part:
3. […] the Union and the Republic of Moldova agree to provisionally apply this Agreement in part,
as specified by the Union, as set out in paragraph 4 of this Article, and in accordance with their
respective internal procedures and legislation as applicable.
4. The provisional application shall be effective from the first day of the second month following
the date of receipt by the depositary of this Agreement of the following:
(a) the Union's notification on the completion of the procedures necessary for this purpose,
indicating the parts of the Agreement that shall be provisionally applied; and
(b) the Republic of Moldova's notification of the completion of the procedures necessary for the
provisional application of this Agreement. (emphasis added)
It is worth noting that, as opposed to the above quoted provisions from the IPA with Singapore,
these provisions give only one party, namely the EU, the right to decide which parts of the
agreement would be provisionally applied, whereas Moldova was denied any say on the
matter. Virtually identical provisions may be found in the association agreements with
70
Proposal for a Council Decision on the signing on behalf of the European Union of the Comprehensive Economic
and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the
other part, 5 July 2016, COM(2016) 444 final, Article 1.
71
“CETA has identical objectives and essentially the same contents as the Free Trade Agreement with Singapore
(EUSFTA). Therefore, the Union's competence is the same in both cases. […] In case A -2/15 the Commission has
expressed the view that the Union has exclusive competence to conclude EUSFTA alone and, in the alternative,
that it has at least shared competence in those areas where the Union's competence is not exclusive. Many
Member States, however, have expressed a different opinion. In view of this, and in order not to delay the signature
of the Agreement, the Commission has decided to propose the signature of the [CETA] Agreement as a mixed
agreement.” (Proposal for a Council Decision, supra n. 70, Explanatory Memorandum, p. 4)
72
Council Decision on the provisional application of CETA, supra n. 36, Article 1.
73
Ibid., 4
th
recital of the preamble.
74
Statements to be entered in the Council Minutes, OJ L 11, 14 January 2017, p. 14.
75
Schöllmann, supra n. 58, p. 10.
15
Ukraine
76
and Georgia,
77
respectively. Somewhat similar to the Council decision on the
provisional application of CETA, each of the decisions adopted with respect to the provisional
application of the three aforementioned association agreements clarified that the designated
parts of the agreement “shall be applied provisionally […] only to the extent they cover matters
falling within the Union’s competence”.
78
Clarifications to this effect can also be found in
decisions concerning other agreements; for instance, Article 3.1 of the decision on the signing
and provisional application of the EPA with the Southern African Development Community
(SADC) clarifies that the agreement is to be provisionally applied “[a]s regards those elements
falling within the competence of the Union”.
79
Termination of provisional application
International agreements are normally provisionally applied until they definitively enter into
force.
80
However, it is common for agreements to give parties the discretion to terminate their
provisional application before entry into force. In this respect, a standard clause in the EU’s
trade and investment agreements would read as follows: “A Party may terminate the
provisional application of this Agreement by written notice to the other Party. Such termination
shall take effect on the first day of the second month following that notification.”
81
To be noted
is that a party’s discretion to discontinue the provisional application of an agreement is not
qualified in any way. Thus, a party has complete freedom to terminate the provisional
application of an agreement, even where that party still intends to eventually ratify the
agreement. Although Article 218 TFEU does not contemplate the possibility of discontinuing
the provisional application of an agreement, and hence, does not lay down any internal
procedure in this respect, we take the view that terminating the provisional application of an
agreement by the EU requires a Council decision adopted under the same voting requirements
as the decision to start provisional application.
82
76
Article 486, paras. 3 and 4.
77
Article 431, paras. 3 and 4.
78
Council Decision 2014/492 on the signing, on behalf of the European Union, and provisional application of the
Association Agreement between the European Union and the European Atomic Energy Community and their
Member States, of the one part, and the Republic of Moldova, of the other part, OJ L 260, 30 August 2014, p. 1,
Article 3; Council Decision 2014/494 on the signing, on behalf of the European Union, and provisional application
of the Association Agreement between the European Union and the European Atomic Energy Community and their
Member States, of the one part, and Georgia, of the other part, OJ L 261, 30 August 2014, p. 1, Article 3; Council
Decision 2014/668 on the signing, on behalf of the European Union, and provisional application of the Association
Agreement between the European Union and the European Atomic Energy Community and their Member States,
of the one part, and Ukraine, of the other part, as regards Title III (with the exception of the provisions relating to
the treatment of third-country nationals legally employed as workers in the territory of the other Party) and Titles
IV, V, VI and VII thereof, as well as the related Annexes and Protocols, OJ L 278, 20 September 2014, p. 1, Article
4.
79
Council Decision (EU) 2016/1623 of 1 June 2016 on the signing, on behalf of the European Union and provisional
application of the Economic Partnership Agreement between the European Union and its Member States, of the
one part, and the SADC EPA States, of the other part , OJ L 250, 16 September 2016, p. 1.
80
Denise Mathy, Article 25: Provisional Application, in Olivier Corten and Pierre Klein (eds), The Vienna
Conventions on the Law of Treaties: A Commentary, Oxford University Press, 2011, vol. 2, p. 652.
81
E.g., Article 30.7(3)(c) of CETA; Article 4.15(4)(c) of the EU – Singapore IPA; Article 15.10(5)(c) of the EU –
Korea FTA; and Article 17.15(4)(c) of the EU – Vietnam FTA. A variation of the quoted clause may be found in
Article 486(7) of the EU – Ukraine Association Agreement; Article 467(7) of the EU – Moldova Association
Agreement; and Article 431(7) of the EU – Georgia Association Agreement.
82
See also Van Der Loo and Wessel, supra n. 2, pp. 761 and 762.
16
3. RELEVANT INTERNATIONAL LAW
The provisional application of international agreements is recognized and regulated by the
1969 Vienna Convention on the Law of Treaties (VCLT). Thus, Article 25 of the VCLT reads
as follows:
1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the
provisional application of a treaty or a part of a treaty with respect to a State shall be terminated
if that State notifies the other States between which the treaty is being applied provisionally of its
intention not to become a party to the treaty.
Even though the EU is not (and cannot be) a party to the VCLT, the provisions of Article 25
may still apply to the EU’s international agreements insofar as they reflect customary
international law. Whether Article 25, indeed, reflects customary international law, and if so,
to what extent, is not clear. Although Article 25 codified a long-standing practice of
provisionally applying treaties,
83
there seems to be no indication that, at the time the VCLT
was drafted, the practice was accompanied by opinio juris
84
– the latter being one of the two
constituent elements of a rule of customary international law, alongside consistent practice.
Nonetheless, at least two recognized scholars have expressed the view that Article 25 VCLT
may be reflecting customary international law, although they do not agree on whether that is
the case with both paragraphs of Article 25.
85
While one of them seems to believe that, indeed,
both paragraphs reflect established customary international law,
86
the more skeptical of the
two opines that it was “probable that the first part of Article 25 resulted in a crystallization of
custom”, whereas, “the second part of the Article, concerning the manner in which unilaterally
to terminate provisional application, could constitute a rule of progressive development”.
87
Even assuming that Article 25 reflects customary international law, its provisions are residual
in character,
88
like many other provisions of the VCLT.
89
This means that Article 25 is
applicable to a treaty only to the extent that the treaty itself does not regulate its provisional
application. As far as the EU’s trade and investment agreements are concerned, the more
recent ones typically feature clauses on provisional application, which tend to be more detailed
than Article 25 VCLT. Hence, Article 25 has limited relevance for those agreements.
Two further observations are warranted. First, it must be highlighted that under Article 25(2)
VCLT, States enjoy complete discretion to terminate the provisional application of an
agreement if they find it impossible to ratify it, or otherwise decide that they are no longer
interested in definitively becoming a party to the treaty. As explained above, provisions giving
83
Robert Dalton observes that the practice can be traced back to the 1648 Peace Treaties of Westphalia
(Provisional Application of Treaties, in Duncan B. Hollis (eds), The Oxford Guide to Treaties, Oxford University
Press, 2012, pp. 221 and 222).
84
Mathy, supra n. 80, p. 640.
85
Dalton, supra n. 83, p. 232, citing Mathy, supra n. 80, pp. 640 – 641 and Mark E. Viliger, Comentary on the 1969
Vienna Convention on the Law of Treaties, Martinus Nijhoff, 2009, p. 357.
86
Viliger, supra n. 85, p.357, as cited in Dalton, supra. n. 83, p. 232.
87
Mathy, supra n. 79, p. 641.
88
Dalton, supra n. 83, pp. 232 and 233.
89
Anthony Aust, Vienna Convention on the Law of Treaties (1969), Max Planck Encyclopedia of Public International
Law, June 2006, paras. 5 and 6.
17
the parties such an unqualified right to terminate the provisional application of the agreement
may be found in several of the EU’s FTAs. Nonetheless, the parties to a treaty may choose to
derogate from this rule and agree to restrict their discretion in this regard if they so wish.
Second, the international law principle of pacta sunt servanda fully applies to treaties that are
being applied provisionally, including the EU’s trade and investment agreements, meaning
that even though a treaty has not definitively entered into force, its provisionally applied
provisions are binding on the parties, and their violation will trigger the international
responsibility of the party at fault.
90
4. PROVISIONAL APPLICATION AND A MEMBER STATE’S REFUSAL OR FAILURE TO RATIFY
If an EU Member State failed or refused to ratify a mixed agreement, what would be the
consequences of that for the provisional application of the agreement? As explained in the
introduction, the risk of non-ratification by one or more Member States became apparent in
several instances: the threats of Italy and Greece not to ratify the TDCA with South Africa; the
negative outcome of the Dutch referendum on the ratification of the Association Agreement
with Ukraine; Wallonia’s threat that it would block Belgium’s ratification of CETA; and most
recently, Poland’s threat not to ratify CETA.
91
A first question to consider is whether a Member State’s decision not to ratify and the
notification of that decision to the other parties would prevent the provisional application of an
agreement that had been already signed. The Member State’s decision would be notified
sometime between the signature of the agreement and the date scheduled for the start of
provisional application. This scenario is inspired by Italy’s threatened refusal to ratify the TDCA
with South Africa. As mentioned, Italy reportedly argued that its potential refusal to ratify the
agreement would also preclude its provisional entry into force.
92
A second question is whether a Member State’s failure to ratify a mixed agreement that has
already been provisionally applied by the EU would require the latter to terminate the
provisional application. This scenario, in turn, is inspired by the circumstances surrounding
the signing of CETA.
93
As explained above, the Union may only undertake to provisionally apply those parts of a
mixed agreement falling within its competence and the Council should exclude from
provisional application the remaining provisions. As shown, the Council occasionally makes it
explicit in its decisions that the provisional application of the agreement at issue is limited to
matters covered by EU competence. Furthermore, Article 218 TFEU does not envisage any
role for the Member States, besides, of course, voting in the Council on the decisions related
90
Mathy, supra n. 80, p. 652, see also p. 646; Dalton, supra n. 83, pp. 238 and 239, see also pp. 229 and 230;
Mahnoush H Arsanjani and W. Michael Reisman, Provisional Application in International Law: The Energy Charter
Treaty, in Enzo Canizzaro (eds), The Law of Treaties Beyond the Vienna Convention, Oxford University Press,
2011, pp. 101 and 102. See also Draft Articles on the Law of Treaties with commentaries, Yearbook of the
International Law Commission, 1966, vol. 2, p. 210; and International Law Commission, Provisional application of
treaties: Texts and titles of the draft guidelines provisionally adopted by the Drafting Committee at the sixty-seventh
to sixty-ninth sessions, A/CN.4/L.895/Rev.1, 25 July 2017, guidelines 6 and 7.
91
James Shotter and Jim Brunsden, Poland threatens to block part of EU-Canada trade deal, Financial Times, 7
September 2017. Van der Loo and Wessel went as far as stating that it was “only a matter of time before we will
be confronted with” the problem of non-ratification (supra n. 2, pp. 768 and 735).
92
Supra p. 5 and n. 8.
93
Supra p. 6 and n. 17.
18
to the negotiation, signing, provisional application and conclusion of the agreement. Referring
to the EU and the Member States, the Court of Justice has ruled that in the context of
negotiating and concluding mixed agreements “each of [the] parties must act within the
framework of the competences which it has while respecting the competences of any other
contracting party”.
94
Bearing these observations in mind, we now turn to the first question.
It should be recalled that according to Article 25(2) VCLT a State is freed from its obligation to
provisionally apply a treaty once it notifies the other parties between which the treaty is being
applied of its intention not to ratify the agreement. Although Article 25(2) is silent on the matter,
it must reasonably be interpreted as equally applying to a situation in which a State notifies its
intention not to ratify before the start of provisional application.
In arguing that its threatened refusal to ratify the TDCA with South Africa would preclude the
agreement’s provisional application Italy relied on Article 25(2) VCLT.
95
For the sake of the
argument, let us assume that Article 25(2) reflects customary international law and that it
applies to the EU’s mixed agreements. Still, a Member State’s claim that its refusal to ratify
could prevent the provisional application of the agreement between the third country at hand
and the EU is seriously misguided. Strictly speaking, where the EU provisionally applies the
parts of a mixed agreement falling within the scope of its competences, the Member States
are not privy to that in their own name, as distinct subjects of international law, but rather as
constituent parts of the EU. In other words, the Member States do not qualify as “States
between which the treaty is being applied provisionally” (or between which the treaty is about
to be applied provisionally) in the sense of Article 25(2) VCLT. The EU’s provisional application
of the parts of a mixed agreement falling within its competences is akin to provisionally
applying an EU-only agreement; Member States have no say in the matter outside the
framework of Council decision-making. The situation would be different if the Member States
were to provisionally apply, or undertake to provisionally apply, the agreement in their own
names – that is, the parts of the agreement falling within the scope of their own competences.
In such a scenario they would qualify as “States between which the treaty is being applied
provisionally”, and thus they could freely decide, according to Article 25(2), whether to
provisionally apply or not parts of the agreement or whether to discontinue an ongoing
provisional application. This is also perfectly in line with the CJEU’s ruling quoted above that
the EU, on one side, and the Member States, on the other, must each act within the confines
of their competences. In any case, it seems to be very uncommon for the Member States to
provisionally apply the parts of the agreements falling outside EU competence.
96
Hence, we
must conclude that, from an international law perspective, a Member State’s notification of its
intention not to ratify the agreement cannot preclude the EU from provisionally applying the
agreement.
94
C-28/12, Commission v. Council, 28 April 2015, para. 47.
95
Rosas, supra n. 8; Joni Heliskoski, Mixed Agreements as a Technique for Organizing the International Relations
of the European Community and it Member States, Kluwer, 2001, p. 94, n. 104.
96
On the basis of information available on the Council’s website, we identified three isolated instances in which
Member States seem to be provisionally applying mixed trade and investment agreements in their own name as
well. Spain seems to be provisionally applying the EPA with the CARIFORUM countries and the Interim EPA with
Cameroon, while Slovakia, Finland and Estonia seem to be provisionally applying the agreement with Colombia,
Peru and Ecuador. (website of the Council of the European Union,
http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2008034;
http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2008059;
http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2011057, visited
14 April 2018).
19
The above reasoning applies equally to the second question. Since Member States do not
provisionally apply the agreement in their own name, a Member State’s failure or refusal to
ratify a mixed trade and investment agreement cannot, again from an international law
perspective, affect the EU’s ongoing provisional application of that agreement. In order to
terminate such provisional application, an act of the EU itself would be required, and more
precisely, a notification to that effect submitted to the other parties pursuant to a Council
decision.
97
While acknowledging that the EU’s provisional application of a mixed agreement can only be
terminated by the EU itself, Van der Loo and Wessel argued that a Member State’s failure to
ratify would require the EU to terminate the provisional application of the agreement. They
correctly noted that the agreement cannot definitively enter into force absent ratification by all
of the parties, including all Member States.
98
They also observed that the Council decisions
authorizing the provisional application of the EU’s agreements typically provide that the
agreement be provisionally applied “pending its entry into force”
99
or “pending the completion
of the procedures for its conclusion”.
100
Since a Member State’s failure to ratify would mean
that the agreement cannot enter into force or that the procedures for its conclusion cannot be
completed, “the failure of the ratification procedure would require the termination of the
provisional application”.
101
Moreover, in support of their argument, they cited the following
statement adopted by the Council at the meeting when the signing and provisional application
of CETA was decided:
If the ratification of CETA fails permanently and definitively because of a ruling of a constitutional
court, or following the completion of other constitutional processes and formal notification by the
government of the concerned state, provisional application must be and will be terminated. The
necessary steps will be taken in accordance with EU procedures.
102
This statement was later echoed by the Commission. Thus, Deputy Director-General (DDG)
of the Directorate General for Trade, Mauro Petriccione, explained before the European
Parliament’s INTA Committee that if a Member State notified the EU that it would never be
able to ratify an agreement because of constitutional impediments, the Union must act to
97
Supra p. 15.
98
For instance, Article 15.10(2) of the EU – Korea FTA reads the following: “This Agreement shall enter into force
60 days after the date the Parties exchange written notifications certifying that they have completed their respective
applicable legal requirements and procedures or on such other date as the Parties may agree”. (see also Article
30.7(2) of CETA and Article 4.15(2) of the EU-Singapore IPA) A different model may be found in the EU’s recent
association agreements. Thus, Article 486(2) of the EU-Ukraine Association Agreement reads: “This Agreement
shall enter into force on the first day of the second month following the date of deposit of the last instrument of
ratification or approval”. (see also Article 462(2) of the EU-Moldova Association Agreement and Article 431(2) of
the EU-Georgia Association Agreement) There can be no doubt that under both clauses ratification of all parties is
necessary for the entry into force of the agreement. See also Van Der Loo and Wessel, supra n. 2, pp. 743 and
746; Kleimann and Kübek, supra n. 40, p. 34.
99
Article 3.1 of Council Decision 2014/492 on the signing and provisional application of the Association Agreement
with Moldova (supra n. 78); Article 3.1 of Council Decision 2014/494 on the signing and provisional application of
the Association Agreement with Georgia (supra n. 78); Article 4 of Council Decision 2014/668 on the signing and
provisional application of the Association Agreement with Ukraine (supra n. 78).
100
Article 1 of Council Decision 2017/38 on the provisional application of CETA (supra n. 36); Article 3.1 of Council
Decision 2011/265 on the signing and provisional application of the FTA with South Korea (supra n. 36); Article 3.1
of Council Decision 2016/1623 on the signing and provisional application of the Economic Partnership Agreement
with the South African Development Community, OJ L 250, 16 September 2016, p. 1.
101
Van Der Loo and Wessel, supra n. 2, pp. 760 and 761.
102
Statements to be entered in the Council Minutes, OJ L 11, 14 January 2017, p. 15, emphasis added.
20
terminate that agreement, unless some other action is available that would remove the
impediment to ratification.
103
We must acknowledge, albeit with some skepticism, that an argument could indeed be made
that the EU is obliged as a matter of EU law, to terminate provisional application when it has
become clear that the agreement cannot definitively enter into force. In addition to the above
quoted language from Council decisions referring to the temporary nature of provisional
application, Article 218(5) of the TFEU – the legal basis for provisionally applying the EU’s
international agreements – also refers to “provisional application before entry into force”. It
could be argued that provisional application remains justified only as long as there is an
expectation that the agreement will definitively enter into force. However, we believe that this
argument only works in a situation where a Member State’s inability to ratify would truly and
clearly be permanent and definitive. Such a permanent and definitive impediment to ratification
is likely to be rare.
104
As mentioned in the above quoted statement of the Council, such a
situation could result from a ruling of a Constitutional Court that the agreement is inconsistent
with the Constitution of the Member State at hand, or it may arise “following the completion of
other constitutional processes”
105
– we take this to mean a political failure on behalf of a central
or regional parliament to approve the agreement. While in the former situation it is not difficult
to ascertain that a Member State has permanently and definitively failed to ratify, it is unclear
how that would be determined in the latter situation. Surprisingly, the Commission’s view on
the matter seems to be that a Member State should be given the discretion to self-judge
whether it has definitively failed to approve an agreement.
106
Nevertheless, as suggested by DDG Petriccione, some action may be available that would
remove the impediment to ratification; for instance, parts of the agreement could be
renegotiated in order to address the concerns of the Member State at issue. Such was the
case with the TDCA with South Africa, where Italy and Greece eventually backed down from
their threat not to ratify only after extracting further concessions from South Africa.
107
Similarly,
in the case of the Association Agreement with Ukraine, the Netherlands was eventually able
to ratify the agreement after the Member States adopted a decision providing clarifications
meant to assuage the concerns of Dutch voters.
108
Moreover, as a measure of last resort, a
constitutional amendment that would clear the way for ratification may also be available.
Whatever the case, an argument can be made that a Member State that finds itself in the
position of not being able to ratify an EU mixed agreement is obliged by the duty of sincere
cooperation (Article 4(3) TEU) to work together with the Commission towards finding a
solution.
In any event, a Member State cannot unilaterally terminate the EU’s provisional application of
a mixed agreement.
109
Surprisingly, certain statements made by four Member States at the
Council meeting where the decision to sign and provisionally apply CETA was adopted created
103
Mauro Petriccione, Deputy Director General, DG Trade, European Commission, statement before the INTA
Committee of the European Parliament, 10 November 2016, recording available at
http://web.ep.streamovations.be/index.php/event/stream/161110-0900-committee-inta (visited 14 April 2018),
watch from 3:10:00 onwards.
104
Ibid.
105
Supra n. 102.
106
Mauro Petriccione, supra n. 103, watch from 3:10:00 onwards.
107
Rosas, supra n. 8, pp. 369 and 370; Heliskoski, supra n. 95, p. 94 and n. 104.
108
Supra pp. 5 and 6, and nn. 12, 13 and 14.
109
Van Der Loo and Wessel, supra n. 2, pp. 761 and 762; Kleimann and Kübek, supra n. 40, p. 30.
21
some confusion. Thus, “Germany and Austria declare[d] that as Parties to CETA they can
exercise their rights which derive from Article 30.7(3)(c) of CETA [regulating the termination
of provisional application]. The necessary steps will be taken in accordance with EU
procedures.”
110
Poland made a virtually identical statement to the one made jointly by
Germany and Austria,
111
while Belgium stated the following:
In the event that one of the federated entities should inform the Federal Government of its
permanent and definitive decision not to ratify CETA, the Federal Government will notify the
Council, no later than one year from the notification by the entity concerned, that Belgium is
permanently and definitively unable to ratify CETA. The necessary steps will be taken in
accordance with EU procedures.
[…] Moreover, Belgium has noted the right of each party to end the provisional application of
CETA in accordance with Article 30.7 of the agreement.
112
These statements prompted members of the European Parliament’s INTA Committee to ask
DDG Petriccione, present at a committee meeting which took place soon after the signing of
CETA, whether the Member States could stop the provisional application of the parts of CETA
that fell within the scope of the EU’s exclusive competence.
113
In response, he clarified that
the “Member States cannot stop the application of a Union agreement, [and] cannot stop
provisional application unilaterally”.
114
Further confusion ensued. Referring to DDG
Petrictione’s statement before the INTA Committee, three German NGOs sent a letter to Trade
Commissioner Cecilia Malmström asking for a confirmation that only the EU institutions could
terminate the provisional application of CETA and not a Member State unilaterally. In their
view such a position would be at odds with the positions of the German Federal Government
and of the German Constitutional Court.
115
While they did not give any details on why they
believed that the German Federal Government and Constitutional Court held a different view,
they seem to be referring to a judgment rendered by the latter on 13 October 2016, prior to
the signing of CETA. In that judgment, the German Constitutional Court rejected several
applications for an injunction to bar the Federal Government from voting in the Council in favor
of the decisions regarding the signing, provisional application and conclusion of CETA.
Nevertheless, the Court held that the government must ensure that provisions of CETA
regulating the termination of its provisional application are interpreted as “allowing Germany
to unilaterally terminate the provisional application”.
116
The confusion caused by the Member States’ statements seems unjustified. It should be noted
that all three statements made it explicit that the “necessary steps will be taken in accordance
with EU procedures”. To us, this suggests that the Member States were not contemplating
unilateral action.
117
Whereas the German Constitutional Court’s understanding of the matter is undoubtedly
incorrect
118
– clearly provisional application cannot be unilaterally terminated by a Member
110
Statements to be entered in the Council Minutes, OJ L 11, 14 January 2017, p. 15.
111
Ibid.
112
Ibid., p. 21.
113
INTA Committee meeting of 10 November 2017, supra n. 103; see for instance statement by MEP David Martin,
watch from 2:24:00 onwards.
114
Mauro Petriccione, supra n. 103, watch from 3:10:00 onwards.
115
Supra n. 20.
116
Bundesverfassungsgericht, Application for a preliminary injunction in the “CETA” proceedings unsuccessful,
press release no. 71/2016, 13 October 2016, supra n. 54.
117
Van Der Loo and Wessel, supra n. 2, p. 761.
118
Kleimann and Kübek, supra n. 40, pp. 29 and 30.
22
State – the question whether the EU is under a legal obligation to discontinue the provisional
application of an agreement once it has become clear that a Member State has permanently
and definitively failed to ratify a mixed agreement remains open.
5. CONCLUSION
As the EU must act within the limits of the competences conferred upon it, it may only
provisionally apply those parts of a mixed agreement falling within the scope of its
competences. In any case, it would be unable to secure the implementation of provisions
falling outside its competences (i.e., belonging to the purview of Member States powers).
Where the EU provisionally applies a mixed agreement, Member States are privy to such
provisional application not in their own names, as parties to the agreement, but as constituent
parts of the EU. Hence, a Member State’s notification to the other parties of the agreement of
its refusal or failure to ratify the agreement does not preclude, as a matter of international law,
the provisional application of the agreement by the EU; nor can it unilaterally terminate such
provisional application. In order to discontinue the EU’s provisional application of a mixed
agreement, an act of the EU itself is needed; that is, a notification to that effect submitted to
the other parties pursuant to a Council decision. However, an argument can be made that
where a Member State permanently and definitively fails to ratify a mixed agreement, the EU
is under an obligation, as a matter of EU law, to terminate the provisional application of that
agreement.
23
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