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					EU: Bilateral Agreements of
      Member States
      Formerly concluded international
   agreements of Member States with third
                 countries
• Article 351 TFEU
• The rights and obligations arising from agreements
  concluded before the date of their accession,
  between one or more Member States on the one hand,
  and
    one or more third countries on the other, shall not be
  affected by the provisions of the Treaties.
• To the extent that such agreements are not compatible
  with the Treaties, the Member State or States
  concerned shall take all appropriate steps to
  eliminate the incompatibilities established.
     Formerly concluded international
  agreements of Member States with third
               countries - 2
• In applying the agreements referred to in the
  first paragraph, Member States shall take into
  account the fact that the advantages accorded
  under the Treaties by each Member State form
  an integral part of the establishment of the
  Union and are thereby inseparably linked with
  the creation of common institutions, the
  conferring of powers upon them and the granting
  of the same advantages by all the other Member
  States.
Bilateral Agreements of Member States
        Regulation No 662/2009

• Regulation establishing a procedure for the
  negotiation and conclusion of agreements between
  Member States and third countries on particular
  matters concerning the law applicable to contractual and
  non-contractual obligations
• Judicial cooperation in civil matters between Member
  States and third countries has traditionally been
  governed by agreements between Member States and
  third countries
• often reflecting special ties between a Member State
  and a third country and are intended to provide an
  adequate legal framework to meet specific needs of
  the parties concerned.
  Bilateral Agreements of Member
     States – Regulation 662/09
• Former agreements:
• Member States should take all appropriate
  steps to eliminate any incompatibilities
  between the Community (Union) acquis
  and international agreements
• This may involve the need for
  the re-negotiation of such agreements.
  Bilateral Agreements of Member
     States – Regulation 662/09

• Conclusion of new agreements with third countries
  relating to areas of civil justice:
• In its Opinion 1/03 relating to the conclusion of the new
  Lugano Convention, the Court of Justice: exclusive EU
  competence to conclude an international agreement like
  the Lugano Convention with third countries on matters
  affecting the rules laid down in EU secondary legislation.
• Consequently: It is for the Union to conclude
  agreements between the EU and a third country on
  matters falling within the exclusive competence of the
  Union.
  Bilateral Agreements of Member
     States – Regulation 662/09
• A coherent and transparent procedure should be
  established to authorise a Member State to amend an
  existing agreement or to negotiate and conclude a
  new agreement, in particular where the Union itself has
  not indicated its intention to exercise its external
  competence.
• It should be regarded as an exceptional measure and
  should be limited in scope and in time.
• Member State needs an authorisation to open or
  continue formal negotiations on an agreement as well
  as to conclude an agreement.
  Bilateral Agreements of Member
     States – Regulation 662/09

• When authorising the opening of formal
  negotiations, the Commission should be
  able, if necessary, to propose
  negotiating guidelines or request the
  inclusion of particular clauses in the
  envisaged agreement.
  Bilateral Agreements of Member
     States – Regulation 662/09
• Where the Commission intends not to
  authorise the opening of formal negotiations or
  the conclusion of a negotiated agreement, it
  should, before giving its reasoned decision,
  give an opinion to the Member State concerned.
  In the case of refusal to authorise the conclusion
  of a negotiated agreement the opinion should
  also be submitted to the European Parliament
  and to the Council.
  Bilateral Agreements of Member
     States – Regulation 662/09
• In order to ensure that the negotiated agreement does
  not constitute an obstacle to the implementation of the
  Union’s external policy on judicial cooperation in civil
  and commercial matters,
• the agreement should provide either for its full or partial
  denunciation in the event of the conclusion of a
  subsequent agreement between the Union on the
  one hand, and the same third country, on the other
  hand, on the same subject matter, or for a direct
  replacement of the relevant provisions of the
  agreement by the provisions of such subsequent
  agreement.
  Bilateral Agreements of Member
     States – Regulation 662/09
• The United Kingdom and Ireland have
  given notice of their wish to take part in
  the adoption and application of this
  Regulation.
• Denmark is not taking part in the adoption
  of this Regulation and is not bound by it
  or subject to its application
     Hague Conventions and EU
       Exclusive Competence
• Council Decision (2008/431/EC) authorising
  certain Member States to ratify, or accede to,
  in the interest of the European Community, the
  1996 Hague Convention on Jurisdiction,
  Applicable Law, Recognition, Enforcement and
  Cooperation in respect of Parental
  Responsibility and Measures for the
  Protection of Children and authorising certain
  Member States to make a declaration on the
  application of the relevant internal rules of
  Community law
    Hague Conventions and EU
      Exclusive Competence
• The Community is working towards the
  establishment of a common judicial area
  based on the principle of mutual
  recognition of judicial decisions.
• Council Decision 2003/93/EC of 19
  December 2002 authorised the Member
  States to sign the Convention in the
  interest of the Community.
     Hague Conventions and EU
       Exclusive Competence

• Certain Articles of the Convention affect
  secondary Community legislation on
  jurisdiction and recognition and enforcement of
  judgments, in particular Council Regulation (EC)
  No 2201/2003 of 27 November 2003 concerning
  jurisdiction and the recognition and enforcement
  of judgments in matrimonial matters and the
  matters of parental responsibility (Brussels II).
    Hague Conventions and EU
      Exclusive Competence
• The Member States retain their
  competence in the areas covered by the
  Convention which do not affect
  Community law.
• The Community (Union) and the Member
  States thus share competence to conclude
  the Convention.
     Hague Conventions and EU
       Exclusive Competence

• Pursuant to the Convention, only sovereign
  States may be party to it. For that reason, the
  Community (Union) may not ratify, or accede
  to, the Convention.
• The Council should therefore authorise the
  Member States, by way of exception, to
  ratify, or accede to, the Convention in the
  interest of the Community (Union), under the
  conditions set out in this Decision.

				
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posted:8/25/2012
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