EU external agreements: EU and UK procedures

The negotiation, conclusion and implementation of EU external agreements can raise legal, political and practical questions about competence, authority, scrutiny, implementation and jurisdiction which are often confusing. This note looks at these activities at the EU and UK levels.

EU Treaty bases

The EU has legal personality, which means it can negotiate and enter into international agreements with one or more third countries or international organisations, and can become a member of international organisations. This is set out in Articles 216 and 217 of the Treaty on the Functioning of the European Union (TFEU).

The EU negotiates a range of agreements with third states or organisations, most commonly Association Agreements, Free Trade Agreements, Partnership and Cooperation Agreements and Economic Partnership Agreements. In this activity the EU must respect the limits of its competence.

Article 21 of the Treaty on European Union (TEU) sets out broad general principles governing EU international action: democracy, rule of law, universal human rights and fundamental freedoms, respect for human dignity, principles of equality and solidarity, respect for the principles of the United Nations Charter and international law.

Competences Division of competences between the EU and Member States

The EU Treaties define competences as either exclusive to the EU (only the EU can act) or shared with Member States (either the EU or the Member States can act).

Where the EU has supporting and parallel competence, both may act to complement and reinforce each other. EU action must not preclude Member State action.

The extent of EU exclusive competence to ratify or accede to international agreements is often a matter of legal dispute. The EU Court of Justice has established that the EU has exclusive competence where entering into the international agreement “may affect” EU internal legislation.

'Mixed agreements'

Many EU international agreements are ‘mixed agreements’: they cover subject matters in respect of which both the EU and the Member States have competence.

The extent to which the EU is exercising competence should be made clear, particularly with regard to matters of shared competence, although this is often not the case. Mixed agreements can give rise to legal dispute if the Commission claims the EU has exclusive competence; or to legal uncertainty, because neither the agreement nor the EU Decisions on ratification or accession make clear which party (the EU or the Member States in their own right) is exercising competence over what part of the agreement.

For mixed agreements to take effect, the Member States as well as the EU must sign and conclude/ratify them. The process of ratification in the 28 Member States is an entirely domestic affair, and follows the national procedures for ratification of international agreements. If one or more of the Member States does not ratify the agreement, the agreement will not enter into force (but it can still be provisionally applied - see below).

EU negotiating process Treaty-making stages

Under international law, once agreement has been reached, the text of the international agreement is initialled by the negotiators. This does not commit the parties but signifies that the initialled text is an accurate statement of what has been agreed. The next stage, signing the agreement, signifies the party is in agreement with the text, and ratification (or equivalent) shows that the party intends to be bound by the treaty when it comes into force.

EU process

Article 218 of the Treaty on the Functioning of the European Union (TFEU) contains procedures for negotiating and concluding international agreements:

• The Council authorises the negotiation of an international agreement on the recommendation of the Commission or the High Representative (HR) for Foreign and Security Policy (CFSP), if subject matter is linked to CFSP.
• The Council provides negotiating directives (the ‘mandate’) to the Commission/other EU negotiator.
• The Council acts by qualified majority or unanimity depending on subject matter.
• The European Parliament (EP) must be informed immediately at all stages of the procedure.
• A Council Decision authorises the EU to sign an international agreement, on a proposal from the EU negotiator (usually the Commission; HR for CFSP matters).
• A Council Decision on a proposal from the negotiator authorises the EU to conclude an international agreement (the equivalent of ratification).
• The EP is formally consulted on a proposal to conclude an agreement and gives its consent, depending on the subject matter

Provisional application

The international agreement can give the EU the power to trigger its provisional application, pending full ratification. This is normally achieved by including provisional application in the Decision authorising the EU to sign the agreement.

There may be an element of ‘competence creep’ if provisional application is not limited to matters of exclusive EU competence or for which the EU has clearly been authorised to exercise shared competence.

UK scrutiny and ratification

The UK Parliament scrutinises various aspects of making EU external agreements. Where they need ratification in the UK, this is formally a matter of Royal Prerogative, but can also involve Parliament.

Scrutiny Committees informed of EU ‘Mandate’

Ministers should inform the EU Scrutiny Committees in both Houses of the ‘mandate’ approved by the Council, but the contents of the Commission’s draft negotiating mandate is usually confidential and is not deposited in Parliament.

Proposal deposited in Parliament

A proposal for a Council Decision authorising the EU to sign, provisionally apply or conclude an international agreement is deposited in Parliament, and is subject to the Scrutiny Reserve

Debate

In the Commons, the proposal may be debated on the Floor of the House or in European Committee, depending on the European Scrutiny Committee’s recommendation.

A motion of either House can influence how a Minister votes in the Council. However, even if s/he votes against a proposal, it may still be adopted by a qualified majority.

Agreement laid before Parliament

Under the Constitutional Reform and Governance Act 2010, mixed agreements requiring ratification in the UK must be laid before Parliament for at least 21 sitting days once they are signed, along with an Explanatory Memorandum.

At this point they are published as a Command Paper in the European Union Treaty series. After ratification they are re-published in the UK Treaty Series.

“Designated” as an EU Treaty

For mixed agreements which include provisions that need to have effect in UK law, the agreement must be “designated” as an EU Treaty for the purposes of the European Communities Act 1972 (ECA).

This is done by secondary legislation: a draft Order in Council is laid before Parliament and may be debated and/or approved by both Houses by the affirmative procedure.

Designation means that the ECA applies to the agreement as if it were one of the EU Treaties. It enables UK courts to recognise any direct effect arising from provisions of the agreement and gives a Minister the power to adopt UK subordinate legislation to implement the agreement in the UK.

Parliament can object to ratification

Under the 2010 Act, either House can object to ratification of a treaty. The Government must then give reasons why it nevertheless wants to ratify.

If the House of Commons objects, it has another 21 days to consider the Government's reasons for ratifying, and can then object again. This can continue indefinitely, effectively giving the Commons the power to block ratification.

The House of Lords has only one opportunity to object, and so can only delay ratification briefly.

Further UK legislation

Further UK legislation may be needed to implement an EU agreement. This must be in place before ratification/accession is completed.

Further information Publication details