Safeguarding the organizational acquis: The EU's external practice

International Organizations Law Review

Volumn 4, Issue 1, 2007, Pages 57-89

  Klabbers, Jan ^a,b  

^a UNIVERSITY OF HELSINKI   (Finland)

^b ACADEMY OF FINLAND   (Finland)

Author keywords

Disconnection clause; EU; EU treaty practice; Law of treaties; Treaty conflict

Indexed keywords

EID: 34548577122     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237307X223620     Document Type: Article

References (147)

1. See Case 22/70, Commission v Council, [1971] ECR 273.
2. See generally Azoulai, "The Acquis of the European Union and International Organisations", (2005) 11 European Law Journal 196-231.
3. See Reparation for Injuries, Advisory Opinion, [1949] ICJ Rep. 174.
4. For a discussion of the implied powers doctrine, its various manifestations, and its theoretical basis, see J. Klabbers, An Introduction to International Institutional Law (2002), ch. 4.
5. See ERTA, supra note 1, para. 31.
6. See Opinion 01/03 (Lugano Convention), Opinion of 7 February 2006, para. 131.
7. See the various Open Skies cases, where much of the Court's reasoning is based on Art. 10 preventing the member states from going it alone: Cases C-466, 467, 468, 469, 471, 472, 475 & 476/98, Commission v United Kingdom, Denmark, Sweden, Finland, Belgium, Luxembourg Austria and Germany, [2002] ECR I-9427. The Court already hinted at the relevance of Gemeinschaftstreue in ERTA, supra note 1, para. 21.
8. Azoulai, supra note 2, adopts a broader perspective, suggesting that the EU at times also aims to project its acquis on other organizations or regimes.
9. Kuijper laments the "lack of foresightedness" that resulted in the EU accepting the WTO Agreement without somehow safeguarding the acquis.
10. See Kuijper, "The Conclusion and Implementation of the Uruguay Round Results by the EC", (1995) 6 European Journal of International Law 222-244, at 237.
11. I will use the term EU both generically and in reference to non-EC activities. It will be clear from the context (I hope) which is which.
12. A recent book-length contribution is D.A. Verwey, The European Community, the European Union and the International Law of Treaties (2004). Recent articles addressing aspects include Kuijper, "The Court and the Tribunal of the EC and the Vienna Convention on the Law of Treaties 1969", (1998/I) 25 Legal Issues of European Integration 1-23;
13. Klabbers, "Re-inventing the Law of Treaties: The Contribution of the EC Courts", (1999) 30 Netherlands Yearbook of International Law 45-74.
14. Somewhat broader in scope is J. Vanhamme, Volkenrechtelijke beginselen in het Europees Recht (2001).
15. The practice of the EU is discussed in Wessel, "De Europese Unie in de internationale rechtsorde", in R.A. Wessel Sc B. de Witte, Deplaats van de Europse Unie in het veranderend bestel van de volkenrechtelijke organisatie (2001), 1-77.
16. Some aspects are discussed in Roucounas, "Engagements paralèlles et contradictoires", (1987/VI) 206 Receuil des Cours 9-288, 262-276.
17. See also Dowrick, "Overlapping International and European Laws", (1982) 31 International and Comparative Law Quarterly 59-98.
18. See Case C-62/98, Commission v Portugal, [2000] ECR I-5171, and Case C-84/98, Commission v Portugal [2000] ECR I-5215.
19. For discussion, see Klabbers, "Moribund on the Fouth of July: The Court of Justice on Prior Agreements of Member States", (2001) 26 European Law Review 187-197.
20. For a general assessment of Art. 307 (ex Article 234), see Petersmann, "Artikel 234", in H. von der Groeben, J. Thiessing and C-D. Ehlermann (eds.), Kommentar zum EWG-Vertrag (4th ed., 1991), 5725-5753.
21. See supra note 6. For discussion, see Franklin, "Flexibility vs. Legal Certainty: Article 307 EC and Other Issues in the Aftermath of the Open Skies Cases", (2005) 10 European Foreign Affairs Review 79-115.
22. For a discussion, see Klabbers, "Restraints on the Treaty-Making Powers of Member States Deriving from EU Law: Towards a Framework for Analysis", in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (2002), 151-175.
23. See most recently Case C-459/03, Commission v Ireland (Max Plant), Judgment of 30 May 2006.
24. On this, see De Witte, "Internationale verdragen tussen lidstaten van de Europese unie", in Wessel and De Witte, supra note 10, at 79-131, and, by the same author, "Old-fashioned Flexibility: International Agreements between Member States of the European Union", in G. de Búrea and J. Scott (eds.), Constitutional Change in the EU: From Uniformity to Flexibility? (2000), 31-58.
25. For instance, the accession agreement with Bulgaria and Romania, concluded in June 2005, is left out of consideration: it would not have much of interest to contribute to the topic of this paper.
26. I shall use the terms "priority" and "primacy" interchangeably, and will by and large abstain from using the term "supremacy", as the latter carries graver connotations and might even be associated with invalidity of treaties deemed subordinate.
27. See Arts. 34-36 of the Vienna Convention. The best discussion remains C. Chinkin, Third Parties in International Law (1993).
28. Dispositive treaties (such as boundary agreements) cannot safely be ignored, of course, and sometimes it is suggested that third parties may be bound to respect the terms of so-called objective regimes. The seminal article is Simma, "The Antarctic Treaty as a Treaty Providing for an "Objective Regime'", (1986) 19 CornellInternational Law Journal 189-209.
29. This is reflected in the title of Art. 30 VCLT but should not be taken too literally: Art. 30 also applies, in principle, to conflicts resulting from treaties dealing with different topics. It would make no sense to suppose that the VCLT would only provide a solution where none is necessary. For the narrow interpretation, see Borgen, "Resolving Treaty Conflicts", (2005) 37 George Washington International Law Review 573-648.
30. The broader (and better) view is to be found in Vierdag, "The Time of the 'Conclusion' of a Multilateral Treaty: Article 30 of the Vienna Convention on the Law of Treaties and Related Provisions', (1988) 59 British Yearbook of International Law 75-111.
31. See Art. 30 VCLT. Moreover, under Art. 59 VCLT, a later treaty may expressly terminate an earlier one.
32. For a discussion in the context of human rights law, see Noll, "Diplomatic Assurances and the Silence of Human Rights Law", (2006) 7 Melbourne Journal of International Law 104-126.
33. A fine recent discussion is Lindroos, "Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis", (2005) 74 Nordic Journal of International Law 27-66.
34. See The Oscar Chinn Case, [1934] Publications of the PCIJ, Series A/B, no. 63, van Eysinga J. dissenting.
35. See the brilliant study by G. Binder, Treaty Conflict and Political Contradiction: The Dialectic of Duplicity (1988).
36. See Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (written by M. Koskenniemi), UN Doc A/CN.4/L.682, of 4 April 2006; the report has recently been published in book form by the Erik Castrén Institute of International Law and Human Rights (2007). See also Lindroos, supra note 25, and J. Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (2003).
37. In a somewhat different context, see also Simma and Pulkowski, "Of Planets and the Universe: Self-Contained Regimes in International Law", (2006) 17 European Journal ofInternational Law 483-529.
38. Art. 103 of the UN Charter proclaims that in case of a conflict between obligations arising under the UN Charter and obligations under other international agreements, those arising under the Charter "shall prevail".
39. See Zuleeg, "Vertragskonkurrenz im Völkerrecht Teil I: Verträge zwischen souveränen Staaten", (1977) 20 German Yearbook of International Law 246-276. The principle is adopted, with varying degrees of enthusiasm, in J. Mus, Verdragsconflicten voor de Nederlandse rechter (1996);
40. S.A. Sadat-Akhavi, Methods of Resolving Conflicts between Treaties;
41. W.H. Wilting, Vertragskonkurrenz im Völkerrecht (1996).
42. Of course, it might be argued that principles by definition do not lend themselves to analysis in terms of legal certainty, given their open-ended nature.
43. Agreement for the Implementation of the Provisions of the United Nation Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and management of Straddling Fish Stocks and Highly Migratory Fish Stocks, reproduced in 34 International Legal Materials (1995), 1542.
44. Additionally, it allows (article 44, paragraph 2) for inter se modification, following more or less the conditions set out in Ait. 41 of the VCLT.
45. See in particular R. Wolfrum and N. Matz, Conflicts in International Environmental Law (2003).
46. See OJ 17.5.2005, L 124/43, Art. 16.
47. See OJ 17.5.2005, L 124/22, Art. 17.
48. See OJ 24.3.2006, L 87/2.
49. See OJ 22.7.2003, L 183/12.
50. Art. 17; see OJ 19.10.2006, L 288/37.
51. See OJ 18.7.2006, L 196/15.
52. See OJ 20.7.2006, L 198/28.
53. The Council decision approving it does call upon the member states directly affected to actively participate in decision-making within the Energy Community. See Council Decision 2006/500/EC, OJ 20.7.2006, L 198/15, consideration 13.
54. Agreement between the European Community and the Turkish Republic on Precursors and Chemical Substances Frequently Used in the Illicit Manufacture of Narcotic Drugs or Psychotropic Substances, OJ 7.3.2003, L 64/30.
55. See OJ 8.4.2005, L 90/36.
56. See Section V.2, infra.
57. See Agreement between the European Community and the Government of the Socialist Republic of Vietnam on Market Access, OJ 22.3.2005, L 75/37, Art. 6.
58. See Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, OJ 28.1.2005, L 26/3.
59. It has been precisely its relationship to Community law instruments which was central to some of the cases involving Art. 307 EC and discussed in Klabbers, Moribund, supra note 12. A fine discussion of the UN Code of Conduct more generally is Kuijper, "The European Communities and the Code of Conduct for Liner Conferences: Some Problems on the Borderline between General International Law and Community Law", (1981) 12 Netherlands Yearbook of International Law 73-111.
60. An example is the EC's accession to the International Convention for the Protection of New Varieties of Plants, OJ 22.7.2005, L 192/63. The Convention was first concluded in 1961, and has been revised a few times in the meantime.
61. See generally R. Frid, The Relations between the EC and International Organizations: Legal Theory and Practice (1995).
62. For a useful, critical overview, see Economidès and Kolliopoulos, "La clause de deconnexion en faveur du droit communautaire: une pratique critiquable", (2006) 110 Revue Générale de Droit International Public 273-302.
63. A brief early discussion is Brillat, "La participation de la Communauté Européenne aux conventions du Conseil de l'Europe", (1991) 37 Annuaire Francais de Droit International 819-832, 828-829.
64. See European Treaty Series, no. 127.
65. See European Treaty Series, no. 133.
66. See European Treaty Series, no. 132. A later Protocol amended the text but not in any substantive manner, merely substituting the term European Community for European Economic Community. European Treaty Series, no. 171, Protocol amending the European Convention on Transfrontier Television.
67. See Agreement between the European Community and the Swiss Confederation in the audiovisual field, establishing the terms and conditions for the participation of the Swiss Confederation in the Community programmes MEDIA Plus and MEDIA Training, OJ 28.3.2006, L 90/23.
68. See Agreement between the European Community and the Swiss Confederation on Cooperation in the Field of Statistics, Art. 12, OJ 28.3.2006, L 90/2.
69. See Partnership Agreement between the European Community and Solomon Islands on Fishing off Solomon Islands, Art. 10, OJ 13.4.2006, L 105/34.
70. See Agreement for Scientific and Technological Cooperation between the European Community and the United Mexican States, Art. 10, OJ 4.11.2005, L 290/17. See also Art. 7 of the Agreement for Scientific and Technological Cooperation between the European Community and the Arab Republic of Egypt, OJ 13.7.2005, L 182/12.
71. See Agreement between the European Community and the Principality of Monaco Providing for Measures Equivalent to those laid down in Council Directive 2003/48/EC, OJ 21.1.2005, L 19/55, Art. 19. Similar provisions can be found in similar treaties with Switzerland (OJ 29.12.2004, L 385/30), Liechtenstein (OJ 24.12.2004, L 379/84), San Marino (OJ 28.12.2004, L 381/33) and Andorra (OJ 4.12.2004, L 359/33).
72. See Agreement between the European Community and the Government of the People's Republic of China on cooperation and mutual administrative assistance in customs matters, OJ 23.12.2004, L 375/20, Art. 2.
73. See Agreement between the EC and Switzerland amending a 1972 agreement as regards the provisions applicable to processed agricultural products, OJ 26.1.2005, L 23/19, Art. 4.
74. See Agreement between the European Community and the Swiss Confederation concerning the participation of Switzerland in the European Environment Agency and the European Environment Information and Observation Network, Art. 18, OJ 28.3.2006, L 90/37.
75. Ibid.
76. See Interim Agreement on Trade and Trade-related Matters between the European Community, of the one part, and the Republic of Albania, of the other part, OJ 1.9.2006, L 239/2.
77. See, in addition to the one mentioned in supra note 26, the Partnership Agreement between the European Community and the Federated States of Micronesia on Fishing in the Federated States of Micronesia, Art. 10, OJ 6.6.2006, L 151/3, and a similar agreement with the Comoros, OJ 20.10.2006, L 290/7.
78. See Fisheries Partnership Agreement between the European Communities and the Kingdom of Morocco, Art. 11, OJ 29.5.2006, L 141/4, and the similar agreement with the republic of the Seychelles, OJ 20.10.2006, L 290/2.
79. See, e.g., Framework Agreement between the European Community and Serbia and Montenegro on the General Principles for the Participation of Serbia and Montenegro in Community Programmes, OJ 22.7.2005, L 192/29, Art. 9. Similar agreements, containing an identical clause, have been concluded with Albania (OJ 22.7.2005, L 192/2), Bosnia and Herzegovina (OJ 22.7.2005, L 192/9) and Croatia (OJ 22.7.2005, L 192/16).
80. See Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, Art. 90, OJ 30.5.2006, L 143/2.
81. See Protocol to the Stabilisation and Association Agreement between the EC and their Member States and the Former Yugoslav Republic of Macedonia, OJ 22.7.2005, L 192/23. This Protocol is, in effect, a framework agreement on general principles for the participation by Macedonia in Community Programmes, akin to the framework agreements concluded with Serbia and Montenegro, Croatia, Albania and Bosnian and Herzegovina. See supra note 67.
82. See Cooperation Agreement between the European Community and the Islamic Republic of Pakistan, OJ 23.12.2004, L 378/22, Art. 21.
83. See Interim Agreement on trade and trade-related matters between the European Community and the European Atomic Energy Community, of the one part, and the Republic of Tajikistan, of the other part, OJ 16.11.2004, L 340/2, Art. 35.
84. See Agreement in the Form of an Exchange of Letters between the European Community and the Republic of Bulgaria on reciprocal preferential trade concessions for certain wines, provision 8, OJ 8.3.2006, L 66/24.
85. See OJ, 17.5.2005, L 124/43, Art. 20.
86. See also Agreement between the European Community and the Republic of Albania on the Readmission of Persons Residing without Authorisation, OJ 17.5.2005, L 124/22. Art. 17 contains the non-affection clause, Art. 20 the territorial application clause. An agreement concluded between Euratom and Kazakhstan on controlled nuclear fusion also merely contains a territorial application clause, without reference to the conditions under which the Euratom agreement applies. See OJ 7.6.2005, L 143/28.
87. See OJ 19.7.2003, L 181/27.
88. For a discussion, see Georgopoulos, "What Kind of Treaty-making Power for the EU? Constitutional Problems Related to the Conclusion of the EU-US Agreements on Extradition and Mutual Legal Assistance", (2005) 30 European Law Review 190-208.
89. See Agreement on Mutual Legal Assistance between the European Union and the United States of America, OJ 19.7.2003, L 181/34.
90. OJ 21.10.2006, L 292/2.
91. Treaty modification between some parties inter se is provided for in Art. 41 of the Vienna Convention on the Law of Treaties, but not unconditionally. See the discussion in Section II, supra.
92. See OJ 5.7.2005, L 172/86.
93. See also Agreement between the Kingdom of Norway and the European Union on Security Procedures for the Exchange of Classified Information, OJ 9.12.2004, L 362/29, Art. 15.
94. See OJ 27.3.2003, L 80/36.
95. See OJ 29.4.2006, L 116/74. Such agreements (including the conflict clause) have also been concluded with others, such as the Former Yugoslav Republic of Macedonia. See OJ 13.4.2005, L 94/39.
96. This may be seen as a distant, more explicit cousin of the succession theory developed by the ECJ in joined cases 21-24/70, International Fruit Company v Produktschap voor Groenten en Fruit, [1972] ECR 1219.
97. See Council Decision 2006/539/EC, OJ 16.8.2006, L 224/22, Art. 3: "On the entry into force of the Antigua Convention, Spain shall denounce the Convention establishing the Inter-American Tropical Tuna Commission."
98. See OJ 30.12.2005, L 324/27. The agreement has a rather unwieldy title: Agreement between the European Community and the Republic of Peru on Precursors and Chemical Substances Frequently Used in the Illicit Manufacture of Narcotic Drugs or Psychotropic Substances.
99. The legal and political advantages are spelled out in J. Heliskoski, MixedAgreements as a Technique for Organizing the International Relations of the European Community and its Member States (2001).
100. See Council Decision 2004/890/EC, OJ 23.12.2004, L 375/27.
101. See OJ 27.10.2006, L 298/29.
102. Additionally, member states may make reservations, in their own treaty relations, with respect to the position of Community law. For a brief discussion, see Azoulai, supra note 2, at 210-211. In addition, treaties concluded by individual member states with third parties may contain a clause safeguarding the position of Community law. An example is the 2005 Agreement between China and Finland on economic, industrial and technical co-operation, which provides in Ait. 7, amongst other things: "The provisions of the Agreement may not be invoked or interpreted in such a way to invalidate or otherwise affect the obligations imposed by the Treaties on which the European Union is founded or by agreements between the People's Republic of China and the European Community." The text is published in Suomen Sopimussarja (Finnish Treaty Series) (2005), no. 71.
103. Standard texts on the EC's external relations tend not to discuss reservations: see, e.g., D. McGoldrick, International Relations Law of the European Union (1997)
104. and P. Eeckhout, External Relations Law of the European Union: Legal and Constitutional Foundations (2004).
105. An old example of a reservation limiting the geographical scope of an agreement (so as to exclude Greenland) is mentioned in I. MacLeod, I.D. Hendry, and S. Hyett, The External Relations of the European Communities (1996), at 118. Kühner mentions a few examples of reservations, and objections to reservations, by the EC.
106. See R. Kühner, Vorbehalte zu multilateralen vö lkerrechtlichen Verträgen (1986), at 17-18, 224.
107. See also the brief discussion in Verwey, supra note 10, at 128-32.
108. See OJ 30.9.2006, L 271/63.
109. Less clearly, a declaration attached to the International Treaty on Plant Genetic Resources suggesting that plant genetic resources may be the subject of intellectual property rights comes close to subordinating the Convention to an intellectual property regime. See OJ 23.12.2004, L 378/1.
110. See OJ 26.10.2006 L 297/1.
111. See, respectively, Council Decision 2006/617/EC, OJ 22.9.2006, L 262/34, and Council Decision 2006/216/EC, OJ 22.9.2006, L 262/24. See also, relating to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Council Decisions 2006/618/EC and 2006/619/EC, OJ 22.9.2006, L 262/44 and L 262/51, respectively.
112. See OJ 22.3.2005, L 76/5, Art. 9.
113. There is some debate on the precise legal status and impact of the 1998 ILO Declaration. For a critical discussion, see Alston, "'Core Labour Standards' and the Transformation of the International Labour Rights Regime", (2004) 15 European Journal of International Law 457-521.
114. See Art. 5 of the Agreement between the European Community and the Kingdom of Denmark on the Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters, OJ 17.11.2005, L 300/55. See also Art. 5 of the Agreement between the European Community and the Kingdom of Denmark on Jurisdiction and the Recognition and Enforcements of Judgments in Civil and Commercial Matters, OJ 16.11.2005, L 299/62.
115. Or, for that matter, whether it is significant that the partner is listed not as the People Republic of China, but as its government. See supra note 60.
116. The argument is less effective if all member states would join the convention at hand: uniformity would still be guaranteed unless the convention creates various levels of obligations or large areas of national discretion.
117. See Commission Document SEC (2001) 315 of 19 February 2001, available at 〈www.statewatch.org/news/2001/mar/18comm315.htm〉 (last visited 29 October 2006). The document was drafted with reference to the Council of Europe Draft Convention on Cybercrime; the quoted reasoning however is of a general nature, and often returns in explanatory reports attached to Council of Europe Conventions.
118. See Economidès and Kolliopoulos, supra note 50, at 275.
119. It is not unlikely though that they exaggerate the traditional openness of Community law. See, e.g., Klabbers, "International Law in Community Law: The Law and Politics of Direct Effect", (2002) 21 Yearbook of European Law 263-298.
120. See, e.g., the position of Swiss socialist Ruth-Gaby Vermot-Mangold, reporting to the Committee on Equal Opportunities for Women and Men of the Council of Europe's Parliamentary Assembly in relation to a draft convention on trafficking in human beings. See Parliamentary Assembly Doc. 10474 of 15 March 2005.
121. See Reuter, "Fourth Report on the Question of Treaties Concluded between States and International Organizations, or between Two or More International Organizations", (1975/II) Yearbook of the International Law Commission 25-46, esp. 36-38. Reuter ascribes this to the still relevant observation that many of the multilateral treaties where reservations are of importance are simply not open to international organizations.
122. On reservations generally, see Kühner, supra note 91;
123. P.-H. Imbert, Les réserves aux traités multilateraux(1978);
124. F. Horn, Reservations and Interpretative Declarations to MultilateralTreaties (1988),
125. and I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (2004).
126. See Kennedy, "A New World Order: Yesterday, Today, and Tomorrow", (1994) 4 Transnational Law and Contemporary Problems 1-47.
127. See, e.g., L. Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (1994).
128. See, amongst many others, J. Dryzek, Deliberative Global Politics (2006), at 135, discussing the EU as a model of international cooperation inspiring liberal multilateralists.
129. The United States ratified the International Covenant on Civil and Political Rights partly on the basis of the understanding "that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Covenant".
130. For a useful discussion, see I. Bernier, International Legal Aspects of Federalism (1973), esp. 172-187.
131. See the 1951 Convention Relating to the Status of Refugees, as reproduced in P.R. Ghandhi (ed.), Blackstone's International Human Rights Law Instruments (4th ed, 2004), 31-41.
132. A French judge, addressing primacy clauses in the filed of private international law, puts it plainly: the primacy clauses represent "a surer means to guarantee the interests of the Community" than resort to the Vienna Convention on the Law of Treaties. See Tell, "La 'Disconnecting Clause'/Disconnection Clause", unpublished seminar paper (2001, on file with the author), at 4. Indeed, to his mind, the point of the disconnection clause (and by extension most other primacy clauses as well) is not to solve or mitigate potential conflicts but rather "precisely to overcome the lack of adaptation of classical rules of settlement of the conflicts of conventions to apprehend the specificity of the community construction ..." Ibid., at 5).
133. See Economidès and Kolliopoulos, supra note 50, esp. at 283.
134. Ibid., esp. at 278-280.
135. As Reuter put it, addressing the International Law Commission, "There was naturally no problem if the possibility of such modification was provided for by the treaty." See ILC, 1508th meeting, (1978/I) Yearbook of the International Law Commission, at 185.
136. See also Koskenniemi, supra note 27, esp. at 124-128; he does raise the somewhat troubling argument that treaty partners may not always realize the full extent of their agreement to acquis-saving clauses.
137. Actually, it is not so clear who made the argument. The Court responds to it (para. 130), but without specifying the source, and the opinion does not give a clear rendition either. The Commission came fairly close, however, without endorsing it. Instead, the Commission tried to deflate it (paras. 83-85) by pointing out that exclusiveness of powers was to be determined objectively instead of by reference to a subjective treaty practice, and moreover, a disconnection clause in private law agreements would be different from a regular disconnection clause (presumably because such agreements aim to delimit and divide jurisdiction rather than create substantive regimes; and the disconnection clause itself can be seen as merely delimiting jurisdiction. It felt that in the present case there would have been no need for a disconnection clause).
138. Opinion 01/03, Para. 130; see also para. 154. Indeed, the Court sided with the Commission and found that the existence of a disconnection clause would not in itself be decisive as to the exclusive nature of the Community's competence; in addition, it also concurred with the Commission's point on private law agreements (para. 155).
139. See case C-467/98, Commission v Denmark, [2002] ECR I-9519, para. 101.
140. See Economidès and Kolliopoulos, supra note 50, at 288-290.
141. See generally De Jong, "Coercion in the Conclusion of Treaties: A Consideration of Articles 51 and 52 of the Convention on the Law of Treaties", (1984) 15 Netherlands Yearbook of International Law 209-247.
142. An agreement between the Commission and the Council of Europe to this effect is reported in Brillat, supra note 51, at 826.
143. See Art. 21 of the Vienna Convention on the Law of Treaties.
144. See Bernier, supra note in, at 182.
145. See Weiler, "The External Legal Relations of Non-unitary Actors: Mixity and the Federal Principle", originally published in 1983 and reproduced in J.H.H. Weiler, The Constitution of Europe (1999), at 130-187.
146. Under Art. 27 of the Vienna Convention on the Law of Treaties, departure from a treaty commitment cannot be excused by reference to internal law; and states tend to frown at reservations which shield national legislation in its entirety (including future developments) from the workings of the treaty in question.
147. See Close, "Self-restraint by the EEC in the Exercise of its External Powers", (1981) 1 Yearbook of European Law 45-68, at 45.