ECJ 1. Whenever community law has created for the institutions of the community powers within its internal system for the purpose of attaining a specific objective, the community has authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connexion. This is particularly so in all cases in which internal power has already been used in order to adopt measures which come within the attainment of common policies. It is, however, not limited to that eventuality. Although the internal community measures are only adopted when the international agreement is concluded and made enforceable, the power to bind the community vis-a-vis third countries nevertheless flows by implication from the provisions of the treaty creating the internal power and in so far as the participation of the community in the international agreement is necessary for the attainment of one of the objectives of the community.
2. The participation of specific member states, together with the community, in the conclusion of an agreement concerning inland navigation is justified, as regards navigation on the rhine, by the existence of certain international conventions which preceded the eec treaty and are capable of forming an obstacle to the attainment of the scheme laid down by the agreement. The participation of these states must however be considered as being for the sole purpose of carrying out the undertaking to make the amendments necessitated by the implementation of the scheme concerned. Within these limits, that participation is justified by the second paragraph of article 234 of the treaty and cannot therefore be regarded as encroaching on the external power of the community.
3. The legal effect with regard to the member states of an agreement concluded by the community within its sphere of jurisdiction results, in accordance with article 228 (2) of the treaty, exclusively from the conclusion thereof by the community.
4. In order to attain a common policy, such as the common transport policy governed by articles 74 and 75 of the treaty, the community is not only entitled to enter into contractual relations with a third country but also has the power, while observing the provisions of the treaty, to cooperate in setting up an international organism, to give the latter appropriate powers of decision and to define, in a manner appropriate to the objectives pursued, the nature, elaboration, implementation and effects of the provisions to be adopted within such a framework.
5. The conclusion of an international agreement by the community cannot have the effect of surrendering the independence of action of the community in its external relations and changing its internal constitution by the alteration of essential elements of the community structure as regards the prerogatives of the institutions, the decision-making procedure within the latter and the position of the member states vis-a-vis one another. More particularly, the substitution, in the structure of the organs of the proposed fund, of several member states in place of the community and its institutions, the alteration of the relationship between member states as laid down by the treaty, in particular by the exclusion or non-participation of certain states in the activities provided for and the grant of special prerogatives to certain other states in the decision-making procedure are incompatible with the constitution of the community and more especially with the concepts which may be deduced from the recitals of the preamble to and from articles 3 and 4 of the treaty. An international agreement the effect of which is also to contribute to the weakening of the institutions of the community and to the surrender of the bases of a common policy and to the undoing of the work of the community is incompatible with the provisions of the treaty.
6. The question whether the grant to a public international organ separate from the community of the power to adopt decisions which are directly applicable in the member states comes with the powers of the institution does not need to be solved, since the provisions of the agreement concerned define and limit the powers in question so clearly and precisely that they are only executive powers.
7. An international agreement concluded by the community is, so far as the latter is concerned, an act of one of the institutions within the meaning of subparagraph (b) of the first paragraph of article 177 of the treaty and therefore the court has jurisdiction to give a preliminary ruling on the interpretation of such an agreement. Since it is possible that a conflict may arise between the provisions concerning jurisdiction set out in the treaty and those laid down within the context of the proposed agreement according to the interpretation which might be attached to the provisions of the latter, the fund tribunal could only be established within the terms concerned on condition that judges belonging to the court of justice, who are under an obligation to give a completely impartial ruling on the contentious questions which may be brought before the court, are not called upon to serve on it.
Citations:
OP-1/76, [1977] EUECJ OP-1/76
Links:
European, Transport
Updated: 21 June 2022; Ref: scu.214544
