External Competence of the EU and International Agreements of the European Union

Dikov Roman Postgraduate student, International Law Department, Russian Foreign Trade Academy of the Ministry for Economic Development of the Russian Federation 119285, Russia, Moscow region, Moscow, Vorobyovskoe highway, 6A roman.prc@mail.ru

The legal personality of an international organization and the concept of external competenceThe constituent act on the establishment of an international organization, concluded by subjects of international law, is the legal basis for the activities of an international organization.

Usually, the constituent act of an organization has a clear structure and establishes, first of all, its goals, functions and powers, as well as the organizational structure, competence of its bodies and the basic conditions for the exercise of this competence. 

The legal personality of an international organization follows from an international treaty, which is its constituent act ^[1]. As N. A. Ushakov rightly notes, the issue of subjects of international law is mainly theoretical in nature, but it also has great practical significance ^[2]. If it is written in the constituent act of an international organization that it is a subject of international law, then this does not prove that it really is ^[3]. The general theory of law recognizes that the subject of law is a person who is subject to its rules, but in international law the situation is different. The content of the term "international legal personality" is not disclosed in the norms of international law; there are only theoretical constructions characterizing the legal nature, grounds and limits of international legal personality ^[4]. In our opinion, the most complete definition of legal personality was given by S. V. Chernichenko, pointing out that "international legal personality is both subordination to the direct influence of international law, and possession of international rights and (or) obligations, and the "regularity" of a person's behavior directly by international law, and the ability to participate in international legal relations ^[5]. In other words, the legal personality of an international organization is not an axiom, but a complex concept that requires proof.

The European Union is an international organization and has legal personality (Article 47 DES) and, therefore, is a subject of international law capable of negotiating and concluding international agreements on its own behalf, i.e. it has the powers in this area granted to it by the Founding Treaties. A.O. Chetverikov notes that "the EU had international legal personality initially", but in the "pre-Lisbon" period, "the international legal personality of the EU was of a complex (segmental) nature" ^[6]. After the adoption of the Lisbon Treaty, Article 47 appeared in the Treaty on the European Union stating that the Union has legal personality. In terms of the necessary evidence of the legal personality of the EU, it is appropriate to quote I. I. Lukashuk that "international legal personality is a historical category" ^[7], and the legal personality of the EU has been proved more than once by Courts, and by many theoretical works, and in practice of international legal relations with other entities.

The peculiarity of international law is that the norms are created by the subjects of this system themselves ^[8], and one of the criteria of legal personality, as mentioned above, is international legal relations, which in turn are directly related to the concept of external competence. S. A. Egorov's Dictionary of International Law gives the following definition of international legal relations: "these are international relations regulated by the norms of international law" ^[9]. The Dictionary of International Law edited by B. M. Klimenko also indicates that the necessary prerequisite for the definition of international legal relations is the norm of international law, and the parties to legal relations act in two qualities: as creators of the norm and as parties whose relations are regulated by this norm ^[10]. Intergovernmental organizations as participants in international legal relations represent stable forms of cooperation between States, endowed with the right to independently enter into interstate relations on issues of their competence. Summarizing the above and approaching the definition of external competence, we can say that international legal relations are relations regulated by the agreed will of subjects of international law, for which more than two subjects of international law are required. Considering that international organizations, as well as integration associations, are participants in international relations, they accordingly need to have the appropriate competence to participate in international legal relations.

Competence is the totality of all the powers of a person within the stipulated goals, objectives and functions (i.e., the permissible scope of the powers). G. M. Velyaminov defines competence as a "package" of powers within which an authorized person acts ^[11]. An interesting parallel with the mythology of Ancient Greece is drawn by Professor Yu. A. Tikhomirov, calling the gods of hunting, crafts, justice, etc. the "founders" of the theory of competence ^[12]. Professor A. Ya. Kapustin defines the competence of an international organization as "a range of issues that international organizations should deal with" ^[13]. Polish lawyer V. Morawiecki defines the competence of an international organization as "the sphere of substantive activity, i.e. the sphere of problems that the organization or its individual bodies have the right or should deal with" ^[14].

That is, if competence is the totality of all the powers of a subject of international law, then by its nature it can be divided into two spheres: external and internal. Professor A. H. Abashidze defines the concept of "external competence" as "the authority to carry out external relations of organizations, including the relationship of international organizations with States (both with members and non-members), other international intergovernmental organizations, international non-governmental organizations, with legal entities and individuals" ^[15]. In our understanding, external competence is a slightly broader concept due to the fact that we refer to external competence unilateral acts of international organizations aimed at creating rights or somehow influencing third parties. That is, for the implementation of external competence, it is not always necessary to have legal relations with other subjects, it is enough to express will. For example, a unilateral statement by the Norwegian Foreign Minister on Danish sovereignty over Greenland resulted in an international dispute, which was considered by the Permanent Court of International Justice in 1933 and ended not in favor of Norway.

In turn, deducing the concept of "external competence", it can be argued that it is a set of powers of a subject of international law, thanks to which this subject can enter into international legal relations with other subjects of international law and (or) influence them.

It should also be added that the external competence of international organizations differs in scope: it may be wider or narrower than that of another international organization (in terms of scope). So, for example, at present, in addition to the import and export of goods, the EU trade law includes the regulation of foreign trade in services, trade aspects of intellectual property and foreign direct investment ^[16], while the supranational competence in terms of foreign trade of the EAEU includes only trade in goods (with the exception of some aspects in terms of intellectual property property).

EU international trade agreements in the context of the implementation of external competence

International treaties belong to one of the main processes of formation of norms of modern international law. As L. Oppenheim points out, "the right to conclude contracts is not a right belonging to the state in the technical sense of the word, but its competence arising from its sovereignty" ^[17]. Considering this issue through the prism of time and the modern subject composition of the international legal system, it should be noted that this principle is also applicable to international organizations, except that States have universal competence, and international organizations have special competence. "Without the legal capacity of an organization to conclude international treaties," writes A. N. Talalaev, "it cannot be considered a subject of international law" ^[18]. According to the preamble of the Vienna Convention on the Law of Treaties between States and International Organizations, or between International Organizations of 1986, "an international organization has such legal capacity to conclude treaties as is necessary to fulfill its function and achieve its goals." 

Under international treaties in EU law, it is customary to understand agreements concluded by the EU with non–EU member states ^[19]. The legal capacity of the Union to conclude an agreement with third parties is specified in Article 216 of the TFEU. International agreements with non-EU countries or with international organizations are an integral part of EU law. These agreements are separated from the basic law and secondary legislation and form a category sui generis. The external competence of the Union is devoted to Part 5 of the TFEU under the title "Foreign policy activities of the Union" and p. 5 of the TFEU "General provisions on foreign policy activities of the Union and special provisions on common foreign and security policy". Also, it should be noted that the EU Court in the same period of time formulated the concept of parallel powers, which certainly expanded international legal personality ^[19]. We are talking about the case of AETR (or ERTA, the European Agreement concerning the work of crews of vehicles engaged in international road transport). I. M. Lifshits, devoting a chapter of his research to this concept, writes: "the internal competence of the Community to regulate a particular field of activity implies external competence to conclude international treaties" ^[1]. It should be noted that this concept is very similar to the concept of "immanent competence" ^[20], only more expanded.

The sources of the EU's external competence in terms of trade policy are the norms of the constituent treaties, namely in p. 5 DES and in Part 5 of the TFEU and the Euratom Treaty; regulatory legal acts of EU institutions: regulations and decisions; judicial decisions and, directly themselves, international treaties. The procedure for negotiating and adopting international agreements is set out in Articles 207 (formerly Article 133 of the EU, and before that Article 113 of the Treaty of Rome) and 218 of the TFEU for common trade policy and other areas of foreign activity, respectively.

The Common Trade Policy and the Customs Union belong to the exclusive competence of the Union (Article 3 of the TFEU). Back in the 1970s. The Court of Justice of the European Communities recognized the Common Trade Policy as the exclusive competence of the EEC and the Lisbon Treaty adopted this as the provisions of the TFEU. The first case that stated that the Common Trade Policy is the exclusive policy of the EU was the Opinion of the Court No. 1/75, in which the Court stated that the common trade policy is "incompatible with the freedom that member States can claim by invoking overlapping powers." In other words, the definition of trade policy of independent subjects of international law – the EU member States has passed into the exclusive competence of the EU as an integration association of member states.

The EU can conclude international agreements within the framework of three different types of competence: exclusive competence, competence to "support, coordinate or complement" the actions of Member States (or loyal cooperation) and joint competence. The main difference between the supporting competence and the exclusive one is the absence of EU power restrictions on the member states, i.e. without replacing the exclusive competence of the member states in a certain vector of their relations with third parties. Agreements that go beyond the exclusive competence of the Union are concluded as "mixed". It should be noted that until 2007, the EU, having exclusive competence in terms of a common trade policy, concluded exclusively mixed trade agreements with third parties. The agreements with Singapore, Japan and Vietnam were concluded directly by the Union, since they were all signed after 2007, after the Court clarified the scope of the common trade policy in its Opinion No. 2/15. In conclusion, it is noted that the EU agreements exclude from the sphere of "exclusivity" provisions on portfolio investments and settlement of disputes between investors and the state. In other words, when the above components are included in the Union's agreement with a third party, such an agreement must be concluded as a "mixed" one. Summarizing the above, it can be noted that until 2007 the EU had exclusive competence in the field of common trade policy with some exceptions.

The EU maintains political and trade relations with States and international organizations around the world, concluding bilateral treaties in accordance with international law with third States, international organizations or regions. Article 207 of the TFEU is the legal basis for a common trade policy. The European Parliament and the Council, by means of regulations in accordance with the usual legislative procedure, take measures defining the legal basis for the implementation of the common trade policy (paragraph 2 of Article 207). The Common Trade Policy is one of the main pillars of the EU's relations with the rest of the world. The structure of these agreements depends on the interests and goals of the contracting parties. Various doctrines of international law have different approaches to the classification of international treaties, and mainly classify them for practical convenience ^[21]. Therefore, conditionally, we classify two types of international agreements: standard-setting agreements and transaction agreements, but within the framework of this study, we consider exclusively the standard-setting agreements of the Union in terms of trade relations.

So, according to the European Commission, the Union has currently concluded the following types of international trade agreements:

1)                Agreement on the Establishment of the Customs Union (Andorra, San Marino, Turkey);

2)                Economic Zone Agreement (Iceland, Liechtenstein, Norway);

3)                Economic Partnership Agreement (Caribbean Forum: Antigua and Barbuda, Bahamas, Barbados, Belize, Botswana, Dominica, Dominican Republic, Eswatini, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago; South-East Africa: Madagascar, Mauritius, Seychelles, Zimbabwe; Southern African Development Community: Mozambique, Namibia, Lesotho; Pacific States: Samoa, Solomon Islands; South Africa;

4)                Interim Economic Partnership Agreement (Cameroon, Comoros);

5)                Progressive Economic Partnership Agreement (Ivory Coast, as well as a similar interim agreement with the Republic of Ghana);

6)                Comprehensive and Enhanced Partnership Agreement (Armenia);

7)                Partnership and Cooperation Agreement (Azerbaijan, Iraq);

8)                Enhanced Partnership and Cooperation Agreement (Kazakhstan);

9)                Stabilization and Association Agreement (Western Balkan States: Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia);

10)            Association Agreement (Algeria, Egypt, Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, Tunisia, Ukraine);

11)            Association Agreement and Additional Protocol (Chile);

12)            Interim Association Agreement (Palestinian National Authority);

13)            Association Agreement with a "strong" trade component (Central America: Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua);

14) Global Agreement (Japan, Mexico);

15)            Comprehensive Economic and Trade Agreement (Canada);

16)            Trade Agreement (Colombia, Ecuador, Peru);

17)            Free Trade Area Agreement (Singapore, South Korea, Vietnam);

18) Deep and Comprehensive Free Trade Agreement (Ukraine);

19)            Agreement on Trade and Cooperation (Great Britain).

Based on the above list, the tools of the Union in terms of the implementation of external competence of an economic nature are clearly visible. So, for comparison, the Eurasian Economic Union is limited to only three types of agreements in the context of the implementation of external competence: an agreement on the establishment of a free trade zone, an interim agreement on the establishment of a free trade zone and a non-preferential agreement on trade and economic cooperation. Returning to the EU agreements, such an extensive toolkit deserves a separate classification. Thus, a general analysis of the agreements leads to the conclusion that despite the extensive tools of the Union, international treaties of this nature pursue certain goals. In this regard, we classify these agreements with third parties into three types:

1)                Agreements on the Customs Union and the economic zone, as a higher level of integration of non–EU member states than simple trade and economic agreements (see No. 1 of the list above). It is impossible not to notice that the so-called "civilizational approach" is traced in these agreements, which Professor V. M. Shumilov writes about ^[22]. 

2)                Agreements on economic integration, Association and partnership (see No. 3-13 of the list above). In our opinion, this category deserves special attention. These agreements demonstrate to us the evolution of the concept of "power" and "influence" from the military-political category to the economic-political category. Most of the states that have concluded agreements with the Union can hardly be attributed to one civilizational type, but nevertheless, the Union has concluded agreements with them in order to "export" its principles and cultural and other values to them on the basis of mutually beneficial cooperation and penetrating the markets. Thus, it is also possible to trace the formation of such a phenomenon as the export of the sovereignty of an integration association, which deserves a separate study.

3) Trade and economic agreements (see No. 14-19). A classic tool for the implementation of external competence of a commercial nature of various coverage.

Thus, it can be stated that in order to exercise external competence in terms of trade cooperation of the Union, political "approval" of expediency in terms of influencing the integration of third parties is necessary. In this context, integration is not meant as membership in the Union, but as "a party sharing pan-European values and policies." The only exception is the developed countries of the third group, which are already under the influence of Western states. Observing such a trend of "hunting for the consumer of pan–European values" and the struggle for markets for goods, etc. - external competence acts as a fundamental tool of integration associations (namely the EU) in terms of such relations with third parties.

ConclusionThe Common Trade Policy is one of the main pillars of the EU's relations with other countries.

Due to its legal personality and the implementation of external competence of a trade and economic nature, the Union performs the functions of an economic and political integration association. The General Trade Policy is the main tool in the implementation of such a function. The classification presented in this paper demonstrates that economic relations with third parties are of an economic nature, but also pursue political goals. In other words, it can be stated that the external competence of the Union is of a "complex" nature, including, in addition to the explicitly designated trade and economic cooperation, the export of cultural values and other forms of "soft" influence on participants in international legal relations with the Union.

In the practice of the EAEU, certain approaches developed in the European Union can be perceived. As S. Y. Kashkin writes, "the competition of states in the international economic system has developed into the competition of regional integration associations" ^[23]. The EAEU needs to accelerate in terms of negotiations and conclusion of agreements with third states and international organizations, and it is possible to start just by expanding the international legal and soft-law base of agreements with external partners of the EAEU.