CYIL vol. 8 (2017)

TOMÁŠ FECÁK CYIL 8 ȍ2017Ȏ of investors’ rights. 8 However, as indicated above, such a scenario is very unlikely in the light of Opinion 2/15, and as a matter of EU law, the EU IIAs will have to be concluded as mixed. The criterion of breach of international obligations entails some more difficulties with respect to mixed agreements. The question is to what extent a mixed agreement creates international obligations of the EU and its Member States respectively. An intuitive answer which seems to suggest itself is that allocation of international obligations from a mixed agreement should follow the allocation of competence for its conclusion. However, such an approach is problematic for several reasons. The borderline between the competence of the Union and that of the Member States with respect to different parts of an international agreement is often unclear; even the CJEU has tended to avoid making statements on the exact delimitation of competences where possible. If the boundaries of the EU competence are difficult to draw even with a detailed knowledge of EU law and may be subject to serious controversies at the internal EU level, competence-based criteria do not seem to be the best choice for establishing international responsibility of the Union and Member States vis-à-vis third countries. Furthermore, not every competence is vested exclusively either in the Union or in Member States. To the contrary, in many areas the competences of the Union are shared with Member States. Where a mixed agreement includes provisions falling within the scope of a shared external competence, the question to which there is no straightforward answer is whether that competence was exercised by the Union or by the Member States, all being parties to the agreement. Finally, such a solution carries the consequence − highly undesirable from the EU law perspective − that international courts or tribunal having the jurisdiction to settle the disputes arising out of mixed agreements may be called upon to decide on questions related to allocation of competences between the EU and Member States, which should better remain purely internal to the Union. A solution of the outlined problems which has been quite common in the treaty practice of the Union are declarations of competence attached to mixed agreements, whereby the Union and its Member States jointly declare which competence of the mixed agreement fall within the competence of the Union and the Member States respectively. In the absence of a declaration of competence or other express derogations, the prevailing view is that the Union and its Member States are jointly liable for the fulfilment of an obligation arising from the commitments undertaken in a mixed agreement. 9 Such a view has been endorsed − at least with respect to the areas of shared competence − also by the CJEU. 10 A real nuisance for the EU representatives as well as for many EU law specialists has turned out to be the DARIO rules on the attribution of the conduct to the international organization. Attribution of an internationally wrongful act to the international organization is the second constituent requirement for its international responsibility to arise. An international organization shall be responsible for the conduct of its organs or agents in the performance of their functions (Article 6(1) DARIO), even in cases of conduct ultra vires where the organ or 8 See DIMOPOULOS, A., The Involvement of the EU in Investor-State Dispute Settlement: A Question of Responsibilities, 51 Common Market Law Review 1684, 1671 (2014). 9 However, there are views suggesting that the demarcation of the EU’s and Member States’ obligations should follow the division of competences. Under such a view, the EU would exclusively assume obligations from the new EU investment agreements insofar as their provisions falling within the scope of the EU exclusive competence under Article 207 ( i.e . foreign direct investment) are concerned. See for instance Dimopoulos, supra n. 8, 1688. 10 Judgment in Parliament v. Council , C-316/91, EU:C:1994:76, paras 24-29.

42