[ARTICLE 188L]

EXTERNAL ACTION:

UK WILL BE PREVENTED FROM ENT= ERING INTO EXTERNAL NEGOTIATIONS

SINCE UNION HAS THE PRIMARY LEGAL BASIS TO CONCLUDE AGREEMENTS<= /o:p>

[ARTICLE 188L]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area:

Treaty= on the Functioning of the European Union, Part Five, External Action by the Union, Title V International Agreements, Article 18= 8L

Amendment:

Clause 2, page 1, line 12, after ‘excl= uding’, insert—<= /o:p>

‘(i) Article 2, paragraphs 170 to 174, inserted Ti= tle V and Articles 188L to 188O TEC (TFEU) relating to international agreements; and

(ii)’.

Amendment:

Clause 2, page 1, line 12, after ‘excluding’, insert—

‘(i) Article 2, paragraphs 154 to 168, new Part Fi= ve TEC (TFEU) relating to external action by the European Union; and

(ii)’.

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Lisb= on Treaty Article:

“170) A Title V "INTERNATIONAL AGREEMENTS&quo= t; shall be inserted after Article 188 K.

171) The following Article 188 L shall be inserted:=

"ARTICLE 188 L

1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provid= e or where the conclusion of an agreement is necessary in order to achieve, with= in the framework of the Union's policies, one of the objectives referred to in= the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Mem= ber States."”

Consolidated Treaty Article(s):

n/a

Expl= anation:

Article 188 L is another new Article with a new title - "INTERNATIONAL AGREEMENTS – which essentially boosts the EU’s ability to sign international agreements on its own. This is a consequence of its new “legal personality” which it acquires under the terms of the Li= sbon Treaty. Presently, only the European Community, and not the European Union,= has legal personality.

Whilst this Article is new, presently, the provisions on the Community’s relations with third countries and international organisations as well as the Community’s powers to conc= lude agreements with third countries or international organizations are included= in part six, General and Financial Provisions of the TEC. Also, the conclusion= of international agreements is provided for in several articles such as Articl= e 24 TEU on the CFSP and Article 34(d) TEU on police and judicial cooperation, Article 133 TEC on Common Commercial Policy, Article 300 and Article 310 TE= C.

Article 188L provides the EU with mas= sive powers to conclude international agreements not just “where the Treat= ies so provide” but also “where the conclusion of an agreement is necessary in ord= er to achieve, within the framework of the Union's policies, one of the object= ives referred to in the Treaties, or is provided for in a legally binding Union = act or is likely to affect common rules or alter their scope.” Furthermor= e, according to Article 2 B TFEU the Union has exclusive competence “for= the conclusion of an international agreement when its conclusion is provided fo= r in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or insofar as its conclusion may affect common rules or alter their scope.” The n= ew Article 188 L (1) as well as Article 2 B (2) codifies the ECJ case law, in particular the ERTA judgement concerning the EC external competence. Accord= ing to the ECJ and the principle of implicit powers, the EC competence in exter= nal matters derives from explicit internal competence. Hence, if the Treaties provide explicit powers to the Community in a certain area the Community has similar powers to conclude agreements with third countries in the same area= . Such principles will also apply, under = the Lisbon Treaty, to CFSP and Justice and Judicial Cooperation in Criminal Matters.

There is a Declaration on Article 188= N of the TFEU related to the negotiation and conclusion of international agreements by Member States in the area of freedom, security and justice, stating that “The Conference confirms that Member States may negotiate and conclude agreements with third countries or international organisations= in the areas covered by Chapters 3, 4 and 5 of Title IV of Part Three insofar = as such agreements comply with Union law.” However, it is a declaration = and it is not legally binding. It is clear that the Lisbon Treaty will have a detr= imental impact on the UK’s ability to conclude agreements with third countries. The UK will be prevented from entering into agreements in areas covered by the Union= .

Article 188 L (2) states that “Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States." This provisio= n is based on present Article 300 (7) TEC. Nevertheless, the Lisbon Treaty expan= ds the Union competence to conclude international agreements – therefore= , we will see further external agreements binding on the Member States.