Keywords

Summary



Keywords

1. International agreements - Preliminary opinion of the Court - Agreement envisaged - Concept

(EC Treaty, Art. 228(6))

2. International agreements - Conclusion - Preliminary opinion of the Court - Permissibility of a request for an opinion - Objection of inadmissibility - Inapplicable - Objections raised against the admissibility of the request - Examination by the Court

(EC Treaty, Art. 228(6); Rules of Procedure of the Court, Art. 91)

3. International agreements - Conclusion - Preliminary opinion of the Court - Subject-matter - Division of powers between the Community and the Member States - Issue capable of being examined in contentious proceedings - No effect

(EC Treaty, Art. 228(6))

4. International agreements - Conclusion - Competence of the Community - Decision of the OECD on the treatment of foreign-controlled undertakings - Subject-matter covered only in part by the common commercial policy - Competence of the Community under Article 113 of the Treaty not exclusive

(EC Treaty, Art. 113)

5. Common commercial policy - Transport - Exclusion

(EC Treaty, Arts 74 et seq. and 113)

6. International agreements - Conclusion - Decision of the OECD on the treatment of foreign-controlled undertakings - Competence of the Community - Not exclusive to the extent that the matter is at present covered by common internal rules

(EC Treaty, Arts 57(2), 75, 84 and 100a)

7. EC Treaty - Article 235 - Scope - Conferral of exclusive competence on the Community to conclude international agreements - Exclusion

Summary

1. In its reference to an 'agreement', Article 228(6) of the Treaty uses that expression in a general sense to indicate any undertaking entered into by subjects of international law which has binding force, irrespective of its formal description.

2. Article 91 of the Rules of Procedure cannot be applied in connection with the consultative function entrusted to the Court by Article 228 of the Treaty. The aim of Article 91 is to enable the Court to give a decision on certain preliminary objections or other preliminary pleas, before the parties put forward their arguments on the substance of the case. That clearly does not apply to the procedure for an opinion. However, where objections are raised, by a Member State or an institution authorized to submit observations, against the admissibility of the request, it is for the Court to examine whether the request is admissible.

3. The opinion of the Court may be sought pursuant to Article 228(6) of the Treaty, in particular on questions which concern the division of powers between the Community and the Member States to conclude a specific agreement with non-member countries.

The fact that certain questions raised in a request for an opinion may be dealt with by means of other remedies, in particular by bringing an action for annulment under Article 173 of the Treaty, cannot have the effect of precluding the Court from being asked for an opinion on those questions beforehand under Article 228. That procedure must be available for all questions capable of submission for judicial consideration, in so far as such questions give rise to doubt as to either the substantive or the formal validity of the agreement with regard to the Treaty.

4. The rule on national treatment set out in the Declaration of the OECD member countries on international investment and multi-national enterprises, to which the Third Decision on national treatment of the Council of the OECD refers, concerns the situation of undertakings, regardless of the sector in which they carry on their activities, which operate, in particular through branches and subsidiaries, on the territory of the Member States of the Community and which are owned or controlled by nationals of other OECD member countries. In view of its scope, that rule concerns mainly the conditions for the participation of foreign-controlled undertakings in the internal economic life of the Member States in which they operate - conditions which are governed by the Community's internal market rules - but it also applies to the conditions for their participation in trade between the Member States and non-member countries, which are the subject of the common commercial policy of the Community.

Accordingly, Article 113 of the Treaty cannot confer exclusive competence on the Community to participate in the Third Decision.

5. International agreements in the field of transport fall within the scope of the common transport policy and not within that of the common commercial policy. Thus, to the extent that it concerns the conditions under which foreign-controlled undertakings are involved in international transport to or from non-member countries, the national treatment rule set out in the Declaration of the OECD member countries on international investment and multinational enterprises, to which the Third Decision on national treatment of the Council of the OECD refers, falls outside the scope of Article 113 of the Treaty.

6. The Community's exclusive external competence does not automatically flow from its power to lay down rules at internal level. The Member States, whether acting individually or collectively, only lose their right to enter into obligations with non-member countries as and when there are common rules which could be affected by such obligations.

Although, in certain fields of activity to which the Third Decision on national treatment of the Council of the OECD relates, the Community has adopted, on the basis in particular of Articles 57(2), 75, 84 and 100a of the EC Treaty, measures capable of serving as a basis for an exclusive external competence, those measures do not cover all the activities to which that decision relates.

It follows that the Community is competent to participate in the Third Decision, but that such competence does not cover all the matters to which that decision relates, with the result that joint competence is shared with the Member States.

7. While Article 235 of the Treaty enables the Community to cope with any insufficiency in the powers conferred on it, expressly or by implication, for the achievement of its objectives, that article cannot in itself vest exclusive competence in the Community at international level. Save where internal powers, and a fortiori the power conferred by Article 235, can only be effectively exercised at the same time as external powers in order to achieve Treaty objectives which cannot be attained merely by laying down autonomous rules, internal competence can give rise to exclusive external competence only if it is exercised.