Controversies on Article 351 TFEU and the Supremacy of EU Law

By August 3, 2017 Law

Since the constitution of the European Union ( hereinafter ‘EU’ ) with the Maastricht Treaty in 1993, the accession to it, had been perceived as the basis for a province into a new national economic and political development. The important premiss of the EU is the incorporation of the EU legal order in its entireness into the province national legal system over which the EU has precedency, in other words, restricting its sovereignty in favor of tautening up the integrating in the EU. However this constitute a complicated issue, normally of a great importance, evolve at the accession of a province to the EU. This regards the relationship of a member province with 3rd states, in term of adhering nature of bing understandings. Membership to the EU, does non in itself, an baronial stature, to coerce a late joined member province to move, in breach of pre-accession international understandings, against a 3rd states, nor allow the parties to the understandings to run on the footing of this regulation everlastingly taking to a disparate interloping, jeopardizing the basic kernel of the EU, that is the Supremacy of EU Law.

The undermentioned paragraph will look into the function and effects of Article 351 of the Treaty on the Functioning of the EU ( hereinafter ‘TFEU’ ) . This article has been intentionally implemented with the purpose to cover with these dualities, that is ‘to do it clear, in conformity with the rule of international jurisprudence, that application of the EC pact does non impact the responsibility of the Member State concerned to esteem the rights of 3rd states under a anterior understanding and to execute its duty thereunder.’ [ 1 ]

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This paper will analyze the contentions of the Article 351 TFEU, lucubrating on the decision day of the month of the international understandings, the consequence of future amendments to international understandings, the possible hits, and above all, the domination of EU jurisprudence. The prohibition of international understandings established between Member States, state of affairss whereby 3rd states are favoured in the reading of the commissariats, competencies of national tribunals and the Court of Justice of the EU ( hereinafter ‘CJEU’ ) in construing international understandings. As a concluding point, analyzing paragraph 3 of Article 351 of the TFEU, refering duty to renegociate or end international understandings.

2. Scrutinising of Article 351 TFEU

Article 351 TFEU[ 2 ]:

The rights and duties originating from understandings concluded before 1 January 1958 or, for submiting States, before the day of the month of their accession, between one or more Member States on the one manus, and one or more 3rd states on the other, shall non be affected by the commissariats of the Treaties.

To the extent that such understandings are non compatible with the Treaties, the Member State or States concerned shall take all appropriate stairss to extinguish the mutual exclusivenesss established. Member States shall, where necessary, assist each other to this terminal and shall, where appropriate, follow a common attitude.

In using the understandings referred to in the first paragraph, Member States shall take into history the fact that the advantages accorded under the Treaties by each Member State form an built-in portion of the constitution of the Union and are thereby inseparably linked with the creative activity of common establishments, the conferring of powers upon them and the granting of the same advantages by all the other Member States.

The first portion of the article allow Member States to esteem their committednesss under international understandings towards non-EU provinces, even if the ulterior struggles wholly with EU rules.

The 2nd portion enforce a responsibility on the submiting province, to cover with the dualities, and besides actively enforce on other Member State to back up where necessary accomplishing the intended purpose, that is the consistence in the EU.

The last portion prevents limits the possible benefits through bilateral pacts to EU non-member province.

On a general footing, the standards for an international understanding to fall within the construct of Article 351 TFEU seems clear. The pact, implicating international rights and duties, must hold been concluded between a Member State and a 3rd states, before the Member State accession to the EU. In Kadi V Council and Commission [ 3 ] , the Court has opted to contract the reading, adding a forth standard, predominating the cardinal rule of EU Law.

Under paragraph one of Article 351 TFEU, to simplify the political orientation behind the reference day of the month, that is 1 January 1958, is non every bit easy as it seems. The chief equivocal points is about the diction environing the day of the month itself. We are here to cover with either we should take it literally or the intended rule behind. There is this attack that will see reasoning an understanding as the day of the month of signature, while others will see the act of confirmation as the influencing point. Nonetheless, the Court has neither in Commission v Italy nor in Commission v Belgium, when they had the chance to clear up, took the chance to make it. In Commission v Italy, the tribunal dealt with Italy subscribing the GATT understanding in 1956 and ratified it in 1958 [ 4 ] and in Commission v Belgium, a pact between Zaire and Belgium, applied de facto from its signature. Thus the inquiry of confirmation as a status remains unreciprocated. However, on a logical side, confirmation of an international understanding is the clear interruption that demonstrate the participative factor of a province instead than merely an purpose by subscribing.

Article 351 TFEU is to enable province to accede to the EU without to transgress multinational responsibilities. Thus it is rational that common alteration to international understandings will enable to stop application of article 351 TFEU, so that the EU can implement its entire supreme right over Member State.

Harmonizing to the Court in Commission v Belgium, “…Upon amendments made subsequently, the Member provinces are prevented non merely from undertaking new international committednesss but besides from keeping such committednesss in force if they infringe community law.’ [ 5 ]

The CJEU besides confirmed that it might be possible for understanding with subsequent amendments due to fall ining province like the Federal Republic of Yugoslavia, Czech Republic and others, to fall under the protection of Article 35 TFEU should the Court set up that the parties intended to follow the rule of the continuity of pacts. [ 6 ]

After accession to the EU, harmonizing to the CJEU, Article 351 TFEU is non applicable to international understanding ratified, concluded by Member province even where EU had no competency in the field at the clip, when the Member province ratified it. In clear, the understanding should be rendered compatible toward EU jurisprudence or eliminated.

Every Member province has a general responsibility of active trueness towards the EU, to forbear from any activity that might jeopardize the uniformity end of the EU, under Article 4 of the Treaty of European Union ( Hereinafter, ‘TEU’ ) . There might be some chances whereby the EU has no existent competencies in a needed field, but can be such in future, so, in instance a Member province ratified such understanding base on the absence of competency of EU at that peculiar minute, can non in the hereafter when the EU acquiescence to such competency to seek to be under the protection of Article 351 TFEU. Therefore the tribunal can truly reason that such understanding is in breach of the EU jurisprudence, and implement the Member province to take appropriate steps to extinguish mutual exclusivenesss, and on neglecting such, take appropriate EU jurisprudence breach steps against the Member State.

Article 351 TFEU, harmonizing to instance jurisprudence, though non really descriptive in the proviso, is applicable to merely between Member province and a 3rd states and non intra-EU states.

More frequently, some pacts contain such commissariats that impose such step to widen privileges offered to intra-EU relationship to 3rd parties of a pacts. These are known as ‘most favoured state clauses’ . Therefore cause jobs by widening EU privileges to Non-EU provinces. Therefore the 3rd paragraph of Article 351 TFEU is aimed at restricting the possibility of widening benefits of the EU to non-EU provinces through bilateral pacts of Member provinces.

The Courts’ Competence in covering with Article 351 TFEU.

Under Article 19 TEU, the CJEU do non hold the specific competency to construe national jurisprudence or international jurisprudence, nevertheless, he tribunal has on several juncture attempt to construe both, based on the responsibility arise under Article 4 TEU, that is the trueness to the EU. Following the Von Colson rule, it is an duty of the national tribunal to construe their national jurisprudence ‘in the visible radiation of the diction and intent of the EU law.’ Therefore this require the Member province to take all appropriate and sensible step to carry through all duties and rights originating from the EU pacts. However, such differs from international understandings, the tribunal in BudA•jovicky V Budvar

‘It follows that the national tribunal must determine whether a possible mutual exclusiveness between the Treaty and the bilateral convention can be avoided by construing that convention, to the extent possible and in conformity with international jurisprudence, in such a manner that it is consistent with Community law.’ [ 7 ]

Reasoning on the competency of the national tribunal, the later has a responsibility to seek out the way of the EU jurisprudence in its dictum on the significance and consequence of an international pact is evident.

Interpretation of International pacts are codified in Article 31 of the Vienna Convention on the Law of Treaties, harmonizing to which ‘ [ a ] pact shall be interpreted in good religion in conformity with the ordinary significance to be given to the footings of the pact in their context and in the visible radiation of its object and purpose’ .

During reading, Courts have a responsibility to construe the understandings in trust to cardinal rights being observed and respected. Measures that are incompatible with the convention of human cardinal rights are unacceptable to the community.


In instance of mutual exclusivenesss between international understandings and EU jurisprudence, Member province are obliged to take all sensible stairss to extinguish mutual exclusivenesss under Article 351 ( 2 ) TFEU, or the most utmost place to end an international understanding, in conformity to the Vienna Convention.

Member States are under a legal responsibility to be at common aid and common attitude towards each other to cover with such mutual exclusivenesss.

The CJEU has indicated two clear construction to follow, as describe below.

  1. The first measure is that the Member State can utilize the diplomatic scenario to renegociate new understandings footings rendering the understanding compatible with EU jurisprudence. Nonetheless, even if the parties has done moderately plenty in term of dialogue but due to other political scenario, has non been able to accomplish the purpose to wipe out mutual exclusivenesss, the CJEU has good been clear plenty to stress that political state of affairs of a Member State ‘ can non warrant a go oning failure on the portion of a Member State to carry through its duties under the Treaty’ [ 8 ]
  2. The 2nd scenario is that is although following several dialogue, no understanding had been reach, the whole understanding should be rejected. The intent of such, is to avoid future breach of international jurisprudence, and protecting both EU and 3rd states.

One more major point to clear up that several province can claim that they have taken sufficient proportionate stairss towards doing their understandings compatible but however unfruitful. However, in Commission v Portugal, the CJEU established that even though the Member State has taken proportionate steps, they can non warrant their failure base on the construct of proportionality. However the balance of proportionality is good observe by the EU in continuing a stableness between foreign-policy and brotherhood involvements. Article 351 ( 1 ) TFEU safeguards the benefits of the Member States contrary to Article 351 ( 2 ) TFEU preserve that of the EU. The Article allow, at the Member State discretion to take the require measures base on their ain capableness, to distill insecure understandings to compatible understandings with EU jurisprudence. A Member province can non theorize that his rights are non protected as the Union is offering sufficient stairss to protect his first.

Besides, refering the riddance of mutual exclusivenesss, if during the accession, the Union is informed of a conflicting duty under an international understanding, the latter is introduced in the act of accession so as to oblige the province to retreat from such pacts or duties, for illustration a drawing out an understanding refering pollution, that the EU is already a subscribing party to. Besides, province are advice to extinguish mutual exclusivenesss every bit soonest as possible before the accession or nearest post-accession day of the month. Most surely the said Member province will be granted a deadline to extinguish an inconsistent understanding by agencies of a Regulation.

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