EU Provisional Application

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Date produced: 03/09/2012

1. Based on previous experience, how long does it usually take the European Community to reach a joint (negotiation) position under its common foreign policy?

2. Are there any restraints under European Community law to agree a joint position that provides for both the provisional application of amendments to the Kyoto Protocol in Member States where there are no constitutional concerns and other possible arrangements in Member States where there are such constitutional concerns.

1. There is an effective unanimity requirement for all ‘mixed’ negotiations (those involving both the EU and its Member States as contracting parties) – including the present climate change negotiations. In some cases, such ‘mixed’ unanimity may be more difficult to achieve than a pure EU unanimity, even if the bottom line is the same: all Member States need to agree. However, in a mixed negotiation the Member States often see themselves as having a bigger, and more autonomous role, than in a pure EU-led negotiation.

The timeframe depends on what sort of “position” we are talking about. If it is a mere negotiating position, in principle this can be done very quickly, as all it needs is a Commission proposal to the Council, and the Council deciding on the mandate. All depends on political complexity. If there is a consensus, a couple of weeks or even days suffice. Of course, if we are talking about more than a mere negotiating position, i.e. some legal instrument which needs to be formally adopted, then the whole legislative process kicks in, which takes months, not weeks.

2. It is somewhat difficult to see how the agreement could be provisionally applied by the EU, and some of its Member States, but not others. However, EU external relations law has always been characterized by great flexibility, and as a matter of law I cannot at present see any obstacles to such a partial provisional application.

There aren’t really any legal barriers to a “two or multi-speed Europe” in relation to provisional application. As a matter of law, it is perfectly possible for the EU itself, as a contracting party, to ensure provisional application, and for each Member State, as contracting party, to decide on its own whether such application is possible. But possible does not mean desirable, because a multi-speed approach raises complex legal issues of which parts of the agreement are provisionally applied, in which jurisdictions. The EU generally tries to avoid such a multi-speed approach for ‘mixed’ agreements. For example, the practice has been for the EU to ‘conclude’ the agreement (the EU equivalent of final ratification) only when all the Member States have ratified. It does seem however that it is becoming ever more difficult to sustain this, and there is pressure to allow for more multi-speed, notwithstanding the legal difficulties it gives rise to.