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French Republic v. Commission of the European Communities

Published online by Cambridge University Press:  27 February 2017

Gunnar Schuster
Gunnar Schuster*
Affiliation:
Bruckhaus Westrick Stegemann, Frankfurt am Main, Germany University of Mannheim
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Keywords

European CommunitiesAgreement between the Commission and the United States on competitionpower of the Commission to conclude the Agreement
Type
International Decisions
Information
American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 136 - 142
Copyright
Copyright © American Society of International Law 1995

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References

1 Sept. 23, 1991, reprinted in 30 ILM 1491 (1991).

2 Case C-327/91, slip op., operative para. 1 (Eng.), available in LEXIS, Celex Library, Case File.

3 For a description and analysis, see Allard D. Ham, International Cooperation in the Anti-Trust Field and in Particular the Agreement between the United States of America and the Commission of the European Communities, 30 Common Mkt. L. Rev. 571 (1993); Peter Mozet, Das Abkommen zwischen der EG und den USA über die Zusammenarbeit der Kartellbehörden, 3 Europäische Zeitschrift für Wirtschaftsrecht 201 (1992).

4 The latest in a series of OECD recommendations is the Recommendation of the Council on Cooperation between Member Countries on Restrictive Business Practices Affecting International Trade, Doc. No. C(86)44 (Final), reprinted in OECD, Competition Policy and International Trade: OECD Instruments of Cooperation 16 (1987).

5 Compare Article 89 of the EC Treaty.

6 Opinion of the Advocate General, slip op., para. 4. Besides France, those states may have included Spain and the Netherlands; both states intervened in the proceedings before the Court of Justice and supported the French application.

7 See id., para. 8.

8 Judgment, slip op., para. 17.

9 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, Mar. 21, 1986, UN Doc. A/CONF.129/15 (1986), reprinted in 25 ILM 543 (1986).

10 See Case 22/70, Commission v. Council (“AETR” case), 1971 ECR 263.

11 According to Article 228(7) of the EC Treaty, international agreements concluded pursuant to Article 228 are binding on the institutions of the Community and the member states. Only the internal effects of the agreements are addressed here.

12 Judgment, slip op., para. 15.

13 Id., para. 16.

14 As to the external relations powers and activities of the Community, compare Catherine Flaesch-Mougin, Le Traité de Maastricht et les compétences extemes de la Communauté européenne: à la recherche d’une politique externe de l’Union, 29 Cahiers de Droit Européen 351 (1993); Eric Stein, External Relations of the European Community: Structure and Process, in 1 Collected Courses of the Academy of European Law (1990), bk. 1, at 115 (1991); Frank Emmert, The Treaty Practice of the European Communities in 1991, 3 Eur. J. Int’l L. 186 (1992).

15 Article 228 was extensively amended by the Maastricht Treaty by including, inter alia, provisions on express authorization by the Council to the Commission to start negotiations (Art. 228(1)) and the delegation of powers from the Council to the Commission to conclude agreements amending international agreements previously concluded by the Council (Art. 228(4)). These amendments show that the member states restricted, rather than expanded, the Commission’s role in treaty making.

16 EC Treaty, Art. 210.

17 Judgment, slip op.,

18 Opinion of Advocate General, slip op., paras. 18–22.

19 For example, for the United States the Antitrust Agreement was an executive agreement and not a “treaty” under Article II, §2, cl. 2 of the U.S. Constitution. In Germany, administrative or executive agreements may very well fall under the heading “Treaties” in-Article 59(2) of the Basic Law for the purposes of the constitutional requirement that they be consented to by the federal parliament.

20 Compare Michel Virally, La Distinction entre textes internationaux de portée juridique et textes internationaux dépourvus de portée juridique, 60-1 Annuaire de l’Institut de Droit International 166 (1983).

21 The identical formulation is now in Article 228(2) of the EC Treaty.

22 The Commission attached great weight to the French version of the text, which speaks of “competences reconnues a la Commission” instead of the allegedly weaker terms “attributes a la Commission.”

23 Article 101 (3) of the Euratom Treaty, concluded the same day as the EEC Treaty, provides as regards agreements implementing other agreements duly concluded by the Council that such “agreements or contracts whose implementation does not require action by the Council and can be effected within the limits of the relevant budget, shall, however, be negotiated and concluded solely by the Commission.”

24 Opinion 1/75 (Local Costs), 1975 ECR 1355, 1360.

25 For other cases developing the theory of the institutional balance within the Community, used mainly to delimit and balance the competences of the Community institutions inter se, compare Case C-70/88, European Parliament v. Council, 1990 ECR 1-2067; Opinion 1/76 (Laying-up Fund for Inland Waterway Vessels), 1977 ECR 741, 754; Case 138/79, SA Roquette Freres v. Council, 1980 ECR 3333.

26 The second subparagraph of Article 4(1) of the EC Treaty stipulated that “each institution shall act within the limits of the powers conferred upon it by the Treaty.”

27 The Commission may conclude agreements with nonmember countries for laisser-passer for Community nationals issued by the Community to be recognized within the territory of those countries.

28 Primary Community law, as distinguished from secondary Community law, includes the EC Treaty, treaties of accession and certain protocols to those treaties, i.e., the body of “Community constitutional law,” whereas secondary Community law means directives, regulations, decisions and recommendations of the Community institutions.

29 The Advocate General’s Opinion, slip op., para. 28 nn.27–28, lists 25 instances of bilateral cooperation with nonmember countries undertaken solely by the Commission, including arrangemerits on the establishment of delegations and their privileges and immunities in foreign states, on economic relations, and on technical matters, particularly in health protection and technological cooperation.

30 Judgment, slip op., para. 36; Opinion of the Advocate General, slip op., para. 29.

31 Case 22/70, Commission v. Council, 1971 ECR 263; see also Opinion 1/91 (Second EEA Opinion), 1992 ECR 1-2821.

32 Council Regulation 4064/89 on the control of concentrations between undertakings (Dec. 21, 1989), 1990 O.J. (L 257) 14.

33 The extraterritorial reach of EC competition law is one of the unresolved issues of European antitrust law and, therefore, it was quite plausible for the Commission to enter into the Agreement with the United States. Compare Jean-Pierre Riel, L’application extraterritoriale du droit communautaire de la concurrence et les entreprises canadiennes, 20 Revue Générale de Droit (Ottawa) 693 (1989); William Brown, The Impact of European Community Antitrust Law on United States Companies, 13 Hastings Int’l & Comp. L. Rev. 383 (1990); Jose Perez Santos, The Territorial Scope of Article 85 of the EEC Treaty, in 1992 and EEC/US Competition and Trade Law 571 (16 Annual Proceedings of the Fordham Corporate Law Institute, Barry E. Hawk ed., 1990); Liad Whatstein, Extraterritorial Application of EC Competition Law—Comments and Reflections, 26 Isr. L. Rev. 195 (1992).

34 Judgment, slip op., para. 41.