CYIL 2010

EMIL RUFFER CYIL 1 ȍ2010Ȏ when its conclusion is provided for 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.” This is a specific provision ( lex specialis ) in relation to Art. 216 TFEU; Art. 3 (2) TFEU states the conditions for the EU’s exclusive competence, whereas the scope of Art. 216 TFEU is broader and includes all situations where a Union competence may be established, but not necessarily being of an exclusive nature. It also applies in the area of shared competence between the Union and its Member States, where these entities stand alongside one another as a single contracting party to the concluded agreement. For the procedure for negotiating international agreements, the “procedural” provision of Art. 218 TFEU shall be used, containing a procedure taken to a large extent from the TEC. There are no significant changes in this area, apart from the greater involvement of the European Parliament, which corresponds to the overall increase in importance of this EU institution. (iii) Internal (domestic) effects of EU international agreements The binding nature of EU international agreements is stipulated in Art. 216 (2) TFEU: „Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States“. At a first glance, this does not represent any change in comparison with the provision of Art. 300 (7) TEC, whose wording is almost identical. The only change is in the scope of this provision, since with the abolishment of the pillar structure and removal of the previous specific regime for agreements concluded pursuant Art. 24 and 38 TEU (before the Treaty of Lisbon), Art. 216 (2) applies also to treaties in the areas of CFSP and JHA and explicitly states their binding nature for both the Union and its Member States (for specific issues in these areas, please see below). The agreements concluded by the Union, as was the case so far with agreements concluded by the Community, will become part of Union law and shall have, in principle, the same effects on domestic law as other EU legal acts. Their provisions will therefore have precedence in the event of conflict with national law and they will have direct effect if they fulfil the criteria of being clear, precise and unconditional (i.e., they will establish directly enforceable rights for individuals). In the Czech Republic, the effects of the agreements concluded by the Union are governed by Art. 10a of the Constitution, which according to part of the doctrine and case-law of the Constitutional Court represents the provision which translates the effects of Union law into the domestic legal order. 117 For the category of the “mixed agreements”, concluded jointly by the Union and its Member States, Art. 10 of the Constitution will still be relevant. 118 To the 117 Judgement Pl. ÚS 50/04 of 8 March 2006 (No. 154/2006 Coll.); judgement Pl. ÚS 66/04 of 3 May 2006 (No. 434/2006 Coll.); judgement Pl. ÚS 36/05 of 16 January 2007 (No. 57/2007 Coll.); and judge ment Pl. 19/08 of 26 November 2008 (No. 446/2008 Coll.). 118 Art. 10 of the Constitution provides for the primacy of the so called “presidential” international agree-

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