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Vol. 1984/0 218 
  
 
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Conformém ent au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 
concernant l'ouverture au public des archives historiques de la Communauté économique 
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983, 
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003 
(JO L 243 du 27.9.2003, p. 1), ce dossier est ouvert au public. Le cas échéant, les documents 
classifiés présents dans ce dossier ont été déclassifiés conformément à l'article 5 dudit 
règlem ent. 
In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 
concerning the openin g to the public of the historical archives of the European Econom ic 
Communit y and the European Atom ic Energy Communit y (OJ L 43, 15.2.1983, p. 1), as 
amended by Regulation (EC, Euratom) No 1700/2003 of 22 September 2003 (OJ L 243, 
27.9.2003, p. 1), this fi le is open to the public. Where necessary, classified documents in this 
file have been declassified in conformity with Article 5 of the aforementioned regulation.  
In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom  1. 
Februar 1983  über die Freigabe der historischen Archive der Europäischen  
Wirtschaftsgemeinschaft und der Europäischen Atomgem einschaft (ABI. L 43 vom  15.2.1983,  
S. 1), geändert durch die Verordnung (EG, Euratom) Nr. 1700/2003 vom 22. Septem ber 2003  
(ABI. L 243 vom 27. 9.2003, S. 1), ist diese Datei der Öffentlichkeit zugänglich. Soweit  
erforderlich, wurden die Verschlusssachen in dieser Datei in Übereinstimmung mit Artikel 5  
der genannten Verordnung freigegeben.  
COMMISSION  
OF THE
EUROPEAN COMMUNITIES
General Secretariat
COMMUN IÇATI0N_FR0M_THE_Ç0MMISSI0N_T0_THE_Ç01JNÇIL
concerning the negotiations for a global framework convention  
for the protection of the ozone layer
C0MC84) 549 finalC0MC84) 549 final  
Brussels, 5 October 1984
FOR OFFICIAL USE ONLY

INTRODUCTORY MEMORANDUMt
1. On 19 January 1982 the Council decided to authorize the Commission  
to participate in the negotiations for a global framework convention  
on the protection of the Ozone Layer in order to enable the Community  
to become a contracting party.
2. The Community, together with its Member States, has taken part in  
all the preparatory sessions and working groups which have now produced  
a text which could form the body of a future Ozone Layer Convention.
3. The participation clause originally proposed reads as follows :
"This Convention shall be open for signature at ______ from _______
to
 ______ by any State and by regional economic integration organisations,
co
nstituted by sovereign States, which have competence in respect to the  
negotiation, conclusion and application of international agreements in  
matters covered by this Convention." The USSR has demanded a modification;  
that the words "and a majority of whose Member States are signatories  
to the Convention" should be added. The USA has also requested a similar  
qualifying clause "and at least one of whose Member States is a signatory  
to this Convention".
A. Acceptance of such a clause would be to accept that the Community  
has second-class status in international law, or that in other words,  
it is a perpetual legal minor, which cannot act in its own right  
without the assistance of its Member States. Such a doctrine is clearly  
unacceptable legally or politically.
5. The Council is therefore requested to complete the negotiating  
directives that it gave to the Commission on 19 January 1982, by  
instructing the Commission and Member States not to accept such a sub­
ordination or linkage clause, and instead to ensure that a clause  
similar to that originally proposed is obtained. At the same time
the Commission and Member States should undertake demarches with the  
appropriate Governments in order to ensure support for its position.
6.  The Council is requested to give the above directions as rapidly  
as possible, since the next working session on tne Draft uzone  
Layer Convention will take place from 22nd to 26th October 1984.

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL CONCERNING  
THE NEGOTIATIONS FOR A GLOBAL FRAMEWORK CONVENTION FOR THE  
PROTECTION OF THE OZONE LAYER
1. Introduction
On 19 January 1982 the Council decided to authorize the Commission  
to participate in the negotiations for a global framework convention  
on the protection of the Ozone Layer (hereafter referred to as  
the Ozone Convention (O.L.C.) in order to enable  
the Community to become a contracting party. In that Decision,  
the Council gave the Commission a negotiating mandate, because  
Community competence in relation to the danger to the ozone layer  
is well-established by Council Décisions and Resolution  
concerning chloro-fluorocarbons in the environment, and its  
already existing cooperation with the United Nations Environment  
Programme (UNEP) concerning the ozone layer.
The Community, together with its Member States, has taken part in  
all the preparatory sessions and working groups which have now pro­
duced a text which could form the body of a future Ozone Layer  
Convention. The negotiations have not been easy and have given  
rise repeatedly to problems concerning the clause which will  
permit Community participation. The last session (second part  
of the third session), held in Vienna 16-20 January 1984, of the  
Ad Hoc Working Group of Legal and Technical Experts for the  
Elaboration of a Global Framework Convention for the Protection  
of the Ozone Layer was the occasion for serious confrontation
(1) 80/372/EEC, O.J. L90 of 3/4/1980  
62/79Î/EEC, O.J. Li<;y ot cb/ 1 1/  rroc
Resolution of 30 May 1978, O.J.C133 of 7/6/1978 ../..
r'Ovmonal m e a t·»  Mu· « · la Lot ZO O . ■ -  1C4* Iru M li -  Talaphona 735 00 40/73680 40 -  Talsg.apM* a*Mra». "COM lU*

between the Community and the USSR. There was also grave dis­
agreement between the Community and the USA, and no solutions  
were found to these disagreements.
The UNEP Governing Council at its last session (May-June 1984)  
passed a Resolution recommending that a fourth session of this  
Working Group should be convened in 1984, and should complete  
its work on the Convention, which should then be adopted and  
signed at a diplomatic conference during the first three months  
of 1985.
The Community, to make sure that it can be a signatory to the  
Convention on a satisfactory basis, must act rapidly to overcome  
the existing probtems concerning the clause permitting its participât!
In the directives for the negotiations annexea to the Council Decision
of 19 January 1982, it is stated
"2. The directives for the negotiations shall be determined,  
as the need arises, in the framework of the usual procedures.
3. The negotiations should also aim at ensuring that approp­
riate provisions enabling the Community to become a Contracting  
Party be contained in the Convention."
The Commission has therefore deemed it necessary to request  
specific directives from the Council concerning the nature of the  
Community's future participation in the O.L.C.
2. Problems raised by the Community participation clause.
The O.L.C. is a universal convention within the framework of  
the United Nations (UNEP). It would therefore create difficulties  
to seek a participation clause mentioning the Community specifically.  
The Community had suggested informally that a clause such as that  
in the Geneva Convention on long-range transboundary air pollution

1979 (LRTAp) might be used.The  formula 'regional economic
integration organisation· avoids the problems of a clause mentioning  
the Community specifically, and has already been accepted irj several  
Conventions, notably LRTAP, where it was accepted by the Eastern Bloc  
as well as by the USA.
The formula was accepted as the basis of a negotiating text  
in the meetings of the working groups for O.L.C. *2) However, the  
IBSR demanded that after 'regional economic organisations' a phrase should be added  
'and a majority of vhose Marberjitates are signatories to this Convention'.
The Community and its Member States having declared that this  
was unacceptable, the USA then put forward its so-called compromise  
proposal; 'and at least one of whose Member States is a signatory  
to this Convention'.
(1) "Article K: 1. The present Convention shall be open for  
signature at the United Nations Office at Geneva from
13 to 16 November 1979 on the occasion of the High-Level  
meeting within the framework of the Economic Commission  
for Europe on the Protection of the Environment, by the  
Member States of the Economic Commission for Europe as  
well as States having consultative status with the Economic  
Commission for Europe, pursuant to paragraph 8 of Economic  
and Social Council Resolution 36 (IV) of 29 March 1947, 
and by regional economic integration organizations, con­
stituted by sovereign States, members of the Economic  
Commission for Europe, which have competence in respect  
of the negotiation, conclusion and application of international  
agreements in matters covered by the present Convention.· '
(2) "This Convention shall be open for signature at _______
fr
om ________  to ________  by any State and by regional*
ec
onomic integration organizations, constituted by sovereign  
States, which have competence in respect to the negotiation,  
conclusion and application of international agreements in  
matters covered by this Convention."

-  4 -t
The origin of the USSR'* proposals is clear. It is based on the  
formula used in the Law of the Sea Convention*"^. The motivation  
for the USSR's proposals is even clearer. In recent times, in  
/various UN fora (UNGA, Second and Sixth Committees, FAO), the  
USSR has been contesting the Community's right to speak in its  
own right, and promulgating the legal theory that international  
organisations are always legally subordinated to their member  
States.
3.  The Law of the Sea Participation Clause
It is suggested that the Law of the Sea Convention is not a valid  
analogy for other treaties, universal or regional. The Law of  
the Sea Treaty was a very far-ranging Treaty dealing with legal  
issues from right of innocent passage to fisheries and environ­
ment and deep-sea mining. Unlike the Ozone Convention,  
it also relates to military or other matters outside  
the scope of the Community's non-exclusive powers.
The Law of the Sea Convention was'a wide-ranging package deal  
involving reciprocal rights and duties to which it was important  
to have every ratifying party openly and obviously committed. It  
representsa delicate balance between rights obtained and  
responsibilities incurred. There was a perhaps legitimate concern  
the part of third States that the participation of an international organisationon
(1) ANNEX IX. PARTICIPATION BY INTERNATIONAL ORGANISATIONS:
Article 1. Use of terms: For the purposes of article 305  
and of this Annex, 'international organisation' means an _  
intergovernmental organisation constituted by States to which  
its member States have transferred competence over matters  
governed by this Convention, including the competence to enter  
into treaties in respect o* those matters.
fif.tide 2. Signature: An international organisation may
sign this Convention if a majority of its member States  
are signatories of this Convention. At the time of sig­
nature an international organisation shall make a decla­
ration specifying the matters governed by this Convention  
in resoect of which comoetence has been transferred to that  
organisation by its member States which are signatories,  
and the nature and extent of that competence.

might allow one of its member States which was a non-signatory  
to take advantage of the Convention (via its participation in  
the international organisation), without assuming the duties inherent  
in the Convention. This is not the case in the O.L.C., which  
imposes responsibilities for the future benefit of all mankind.
It was only under the special political and legal circumstances  
of the Law of the Sea Convention that the Community consented,  
as a political compromise, to a participation clause which  
required the prior membership of a majority of its Member States.
The Commission submits that the Law of the Sea Convention is a  
case 'sui generis', and that the participation clause in it  
should not be used as a precedent for other Conventions, in so ?  
far as it involves subordination of the Community's participation  
to participation by its Member States.
The participation clause in the Law of the Sea Convention in fact  
raised two issues; one of subordination which will be discussed  
in more detail below, and secondly that of the specification of  
its competence by an international organisation in a formal declaration.
The question of the competence declaration has been thoroughly  
discussed by the Council on several occasions in relation to the  
Law of the Sea Convention. It has been acknowledged by the  
Community that third States may need to be assured that the  
totality of legal obligations under that convention will be assumed  
by the Community and its· Mëfober Sfatës, and,that there is'no question  
of any loophole occurring. clauses involving a declaration of com­
petence in a general form have been accepted by the Cpmmunity in the Law  
of the Sea Convention, the Convention on the Protection and Development  
of the Marine Environment of the Wider Caribbean Region, and the ·  
Convention on International Trade in Endangered Species. The  
details of who is responsible for what is however an internal  
matter for the Community, to be decided in the Council, and *
should not be discussed with third States: detailed statements  
of Community competence are inappropriate and undesirable.

1The Court has stated that " it is not necessary to set out and determine  
as regards other parties to the Convention, the division o * powers betw-en  
the Community and the Member States, particularly as it may change in ti.e  
course of time. It is sufficient to state to the other contracting parties  
that the matter gives rise to a division of powers within the Community,  
it being understood that the exact nature of that division is a domest’c  
question in which third parties have no need to intervene... The important  
^thing is that the implementation of the convention should not be incomplete"  
(Ruling 1/78, 1978 EL,R 2151 ad para.35).
4. Subordination Clauses from the International Point of View
As seen above, the Community accepted a subordination clause in the  
Law of the Sea Convention because of the particular circumstances.
The Community has also accepted such a clause in the Convention for  
the Protection and Development of the Marine Environment of the Wider  
Caribbean Region, which reads "by any regional economic integration  
organisation exercising competence in the fields covered by the  
Convention and that Protocol and having at least one member
State which belongs to the Wider Caribbean Region ....”
In
 this latter case the subordination clause was considered as accept­
able, because the Caribbean Convention is a regional convention,  
and it is only good sense that international organisations: should  
participate only in those conventions where they have a geograph·'cal  
interest. In a regional convention, such a clause does offer guarantees  
to third States of genuine involvement by the international organi­
sation concerned.( 1)
Such guarantees and assurances are not needed by third states in  
relation to the Ozone Layer Convention. This Convention is not a 'package-  
deal' and it is a universal, not regional, convention. Therefore, there  
is no justification for third states demanding the subordination of the  
participation by the Community to that of its Member States. The  
guarantees which are necessary having been given in the declaration of  
competence, it is in fact interference by third states in the Community's  
internal processes to demand such subordination. The position of the  
United States is especially curious in this case. The USSR is consistent  
with its policies in trying to subject the Community legal existence to  
the most stringent conditions. But the presence of one Member State  
in the Convention cannot afford to the USA or other third states any  
additional guarantee of any kind.
(1) However, it might be argued that it is sufficient that the inter­
national organisation has as its member a state with territorial  
interests in the region, and that there is no necessary requirement  
for this state to be a member of the convention.

-  7 -
t
5· Subordination Clauses :  their compatibility with EEC Law
If for any proposed Convention it is established that the Community  
has competence/ in respect to matters covered by this Convention the  
Commission may request from the Council an authorisation to participate in  
the negotiations/ so that the Community can become a party to the  
Convention. The Community having international legal personality/  
having competence for the subject matter of the Convention and having  
been authorised to negotiate Community participation/ cannot legally  
accept that the exercise of its powers should be subjected to the  
condition of prior participation by one or more of its Member States^  
unless the Community institutions determined-in particular in regard  
to the special characteristics of the convention that joint  
participation by the Community and one or more of its Member States  
is appropriate. _
*
The Community institutions must oppose subordination clauses because  
of the negative effects they are bound to have on the Community's  
legal capacity in the international legal order. The Community  
would be made to appear as having second-class legal personality  
in international law, and as needing to have recourse to the  
assistance of one or more of its Member States in order to exercise  
its own competence. In other words, the subordination clause  
undermines the Community's independent international legal  
personality; such a clause constitutes a 'capitis diminutio' with  
regard to other subjects of international law.
The Community institutions must do all in their power to protect  
the auton&my of the Community; they must resist any attack upon its  
independent personality.
The case of the Law of the Sea Convention shows that there may be  
situations in which the Community may be led to accept a clause  
linking its own participation to that of its Member States. However,  
in the present case, there is nothing in the draft Convention which  
would justify recourse to such a clause. As it stands, the draft

- 8 -f
Ozone Layer Convention contains only very vaguely circumscribed  
commitments. Only after further development of the Convention  
(through addition of protocols) will it have to be determined  
how the Community and Member States should act in complying with  
such commitments. The present structure of the Convention and  
the obligations proposed by it do not provide any reason for arguing  
that, for the purposes of the Convention, an international organi­
sation having competence in the fields covered by it must have its  
participation linked to participation by one or more of its Member  
States.
Under these circumstances the subordination clause proposed for  
the Ozone Layer Convention does not correspond to the particular  
character of this Convention, but reflects political attitudes  
of third countries towards the legal personality of the Community.
6.  The proposed clause in the Ozone Convention
As already underlined in points 4 and 5, the clauses proposed by  
the USSR and the USA in the negotiating text for the O.L.C. are  
not justified from the international point of view and are incom­
patible with Community law. It should be underlined that the O.L.C.  
is a Convention to which it is not possible to enter reservations.
As is well-established, there is mixed competence in relation to  
this draft convention :  thus no Member State has competence for all  
the areas'covered by the Convention. Therefore, the Member States  
are not free to sign the Convention and assume its obligations,  
unless the Community also signs and ratifies it. As a result,

any Member State attempting to sign or ratify the Convention  
without Community participation would be in breach of its
obligations under the Treaty of Rome, and would be subject to
an Article 169 procedure.
The O.L.C. is a Convention which is of great interest to the Community  
and its Member States, and it is essential for the future success of  
the Convention that the Community and its Member States should be able  
to sign it, and subsequently participate fully in its work. The USSR  
also attaches great importance to this Convention. It is suggested
that if it comes to a "show-down" with the USSR  
concerning the subordination clause, and if other parties are in  
favour of Community participation, the USSR will probably climb  
down, in order to achieve Community participation, just as it did  
in the LRTAP Convention. However, in that case, the USA was  
firmly on the side of the Community.The USA has to be convinced  
by the Community and its Member States that it cannot benefit  
from insisting that one Member State must sign before the  
Community does so, and that there is no logical basis for asking  
for this. The USA also should be made aware that if the Community  
does not get a^satisfactory response concerning the participation  
clause, it will not sign the Convention. It must be explained  
to the USA that to accept such a clause would not be consistent  
with the Community legal order, and to attempt to force such  
a clause upon us is interference in internal Community affairs.
7. Conclusions
The Commission therefore proposes to the Council that in accordance  
.  with its Decision of 19 January 1982 it should hereby give the  
Commission the following directives for its negotiation of the  
Draft Ozone Layer Convention. In addition, the Council should  
decide that the Member States should also act (in concert) on the  
following. .  .

* 10 -r
1) The Commission and Member States should ensure during the
negotiations that a clause permitting unfettered Community participa­
tion is written into the draft Convention. Such a clause might  
.  be on lines similar to the following:
"This Convention shall be open for signature at _________
_________  to _________ by any State and by
re
gional economic integration organisations, constituted by  
•  sovereign States, which have competence in respect to the  
negotiation, conclusion and application of international ,  ,  
agreements in matters covered by this Convention."
II) The Commission and Member States shall not under any circum­
stances accept a Community participation clause which would  
make signature or ratification by the Community subject to  
previous signature or ratification by any one or more  
Member States of the Community.
III) The Commission, and Member States, to the extent that this  
may be necessary, shall undertake démarches with the Govern­
ment of,the USA to explain to them why the Council has  
decided that such a subordination clause is not consistent  
with the Community legal order. Subsequently, the Commission  
shall undertake similar démarches with other countries  
including developing countries who are actively concerned in the  
negotiations of the D.O.L.C.
These' actions should be undertaken as rapidly as possible  
if the negotiations during the fourth session of the Ad Hoc  
Group are to have an outcome acceptable and satisfactory to  
the Community.