CYIL 2010

THE QUEST OF THE LISBON TREATY IN THE CZECH REPUBLIC … constitutional provisions would contradict the notion of the negotiation of international agreements by the EU within the sphere of transferred competence, provided such competence is of an exclusive nature. 126 In the area of CFSP, in view of its specific nature, other control mechanisms from the Member States (especially their Parliaments) should be applied, which, however, must not prevent effective and flexible external action of the Union, e.g., in cases where conditions for sending a civil or military mission to a conflict area must be agreed with a third state. (v) Agreements regarding police and judicial cooperation in criminal matters 127 As a consequence of the abolition of the pillar structure – the 3 rd Pillar was fully incorporated into the “Community” sphere – the general procedures under Art. 218 TFEU shall now be applied to police and judicial cooperation in criminal matters. Depending on the delimitation of competences, there will either be agreements within the EU’s exclusive competence or “mixed” agreements, where the Union stands alongside its Member States as one party. However, Declaration No. 36 attached to the Final Act of the Intergovernmental Conference and concerning Art. 218 TFEU 128 raises a certain question of interpretation: „ 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 V of Part Three in so far as such agreements comply with Union law. “ In my view, the said Declaration constitutes a limitation on the implied powers doctrine, which would otherwise prevent Member States from concluding international agreements in parallel with the external actions of the Union. Is it then, in effect, a confirmation of the “parallel” nature of the shared competence of the EU and its Member States and a restriction of exclusive EU competences in this area, which to a large extent reflects the procedures under the 3 rd Pillar that had been used so far. 129 In this area, until now, the notion of parallelism of external actions was used and the doctrine of “occupied fields”, which would otherwise prevent Member States from acting autonomously in areas “covered” by the activities of the Union due to the exercised external competence of the EU, did not apply. 130 126 Under the Treaty of Lisbon, Justice and Home Affairs will be subject to a uniform legislative procedure, as well as to a uniform procedure for the negotiation of international agreements. However, reservation of internal ratification will still be relevant with regard to those JHA agreements which will fall under the shared competence of the EU and its Member States (in the Czech Republic, ratification will be applicable only to the category of “presidential” agreements). 127 Part Three, Title V, Chapter 4 and 5 TFEU. 128 Declaration [No. 36] on Article 218 of the Treaty on the Functioning of the European Union concern ing the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice. 129 A similar concept of parallel competence is applicable in e.g., environmental policy [cf. Art. 191 (4) TFEU] or development cooperation policy [cf. Art. 209 (2) TFEU]. 130 The extent of the so called “pre-emption” or “occupied fields” is also restricted by Protocol (No. 25) on the exercise of shared competence, which stipulates: “With reference to Article 2 of the Treaty on

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