In the MOX Plant judgment, on the Mixed Convention, the Court of Justice imposed on Member States the obligation to inform and consult the competent Community institutions before initiating dispute settlement against another Member State(34). are at risk. If MOX Plant has conferred exclusive competence on the Union, the obligation to provide information and consultation must be considered in a more general context. The reason for this is that the provisions of a mixed agreement apply not only between the Member States, but also between the Member States and the Union. Conversely, this means that in the absence of such a Union interest, Member States are free to postpone ratification or even refrain from ratifying it, thus leaving the agreement in a state of partial mixing despite the problems it poses.138 As I have already explained, the Union`s interest in the unity of its international representation is not a sufficient basis — here for the introduction of a 139 (78) See, in this sense, Kuijper, “International Responsibility”, 220. See, however, the constellation `Member States as representatives of the Union interest: participation in international agreements on behalf of the Union`, examined by Mr Cremona, in A. Arnull et al. (Ed.), A Constitutional Order of States?: Essays in EU Law in Honour of Alan Dashwood (Oxford and Portland, Oregon: Hart Publishing, 2011), 435–457, 444, which argues in favour of an obligation for Member States under Article 4(3) TEU to conclude an agreement if it falls within the exclusive competence of the European Union but which cannot accede to it. In accordance with Article 218(9) TFEU, the Council, acting on a proposal from the Commission, is to adopt a decision `setting out the positions to be taken on behalf of the Union within a body established by an agreement where that institution is required to adopt acts having legal effects …`. where common positions serve as a basis for proposals for acts of such an institution.103 However, in line with the general reluctance of the Treaties to accept mixed agreements, Article 218(9) TFEU does not provide for the case of common positions under such agreements.
This gap is sometimes compensated for by the establishment of rules for the implementation and participation of certain mixed agreements.104 However, it increasingly leads to disputes between Member States and the Union over the right to act in bodies set up under an international convention, as in the case of AFP. A mixed agreement refers to an agreement – for example, a trade agreement that also deals with regulatory or investment issues – between the EU and a third country that allocates both powers or competences reserved exclusively to the EU and the exclusive powers or competences of EU Member States. These agreements must be approved both by the EU and by all Member States. In some cases, member States` authorisation includes the authorisation of sub-national bodies, as in the case of Belgium. In response, the Commission promised in its new Trade Strategy a comprehensive review of its 15-point action plan for the effective implementation and enforcement of the Sustainable Development Goals chapters by mid-2021. However, this review will only feed into the ongoing and future negotiations on a free trade agreement and therefore will not affect the EU-Mercosur free trade agreement. In the meantime, the Commission, in particular its new Trade Enforcement Officer, is also strengthening the EU`s autonomous tools to enforce trade and sustainable use by setting up a new one-stop shop that would allow all EU-based stakeholders to lodge complaints about S&D. In addition, the Commission will propose this summer a binding environmental and human rights due diligence tool. This instrument would oblige companies to take human rights and environmental standards into account in their value chains. Later this year, the Commission will also adopt a legislative proposal to minimise the risk of deforestation and forest degradation associated with products placed on the EU market. That part dealt with various aspects of the Union`s competence. Loyalty is omnipresent here both as a basis for important principles such as the principles of the AETR and the ILO, as the main rule for the exercise of irregular and supporting competences, and in the field of mixed agreements.
This chapter deals with the relationship between the extent of domination and the role of loyalty in relation to mixed agreements. The case law is analysed in such a way that loyalty is an additional instrument for conflict prevention when exclusivity does not work. The chapter also examines how the Union interest, which must be represented in a coherent and uniform manner on the international stage, influences the power of the application of loyalty. On this basis, the limits of the obligations arising from loyalty to the different phases of the “life cycle” of mixed agreements, such as negotiation, conclusion, ratification, as well as their implementation and interpretation, are discussed. This includes an in-depth discussion of the restrictions imposed on Member States by the need to establish common positions in bodies set up under mixed agreements. In general, Member States are not required to reach a coordinated position on matters falling within their exclusive competence.106 However, as already mentioned, Member States are bound by the principle of loyalty even if they act within the framework of their reserved competences under a mixed agreement. The reason for this is that, in the context of a mixed agreement, the interests of the Union may be harmed by the action of a Member State, even if there is no competence of the Union. A second justification is the Union`s general interest in unity, which Member States must take into account in their actions out of loyalty. .