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The Building Blocks and Stumbling Stones of Constructing the European Legal Space

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The Evolving Nature of EU External Relations Law
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Abstract

The integration of third European countries into the EU’s framework of policies and rules is a trajectory of renewed attention in law and politics. The international agreements setting up a legal relationship between the EU and the third European country might differ in detail, but are characterized by similar legal building blocks and legal tools. This chapter explains which categories of international agreements exist and which legal tools are employed to build a European Legal Space in which the EU rules and policies are extended to third countries. The legal content and the legal tools extending EU rules and enforcing and safeguarding their application in international agreements are decisively shaped by the EU’s formal, political and judicial conditions. These conditions are characterized by respecting EU’s competences, safeguarding the integrity of EU law and the autonomy of the EU courts.

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Notes

  1. 1.

    See for instance Council Conclusions on a Homogeneous Extended Single Market and EU Relations with non-EU Western European Countries, Brussels 16 December 2014, 16583/14; European Parliament Recommendation of 13 March 2019 to the Council, to the Commission and to the Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy on the Association Agreement between the EU and Monaco, Andorra and San Marino, P8_TA(2019)0188.

  2. 2.

    Draft Institutional Framework Agreement with Switzerland. https://www.fdfa.admin.ch/dam/dea/fr/documents/abkommen/Acccord-inst-Projet-de-texte_fr.pdf. Accessed 29 June 2020.

  3. 3.

    European Commission 2016.

  4. 4.

    Harding 2000, pp. 28–147; see also Von Bogdandy 2016, who borrows this term more recently to replace European Legal Space for European Legal Order, pp. 519–538.

  5. 5.

    European Commission 2007.

  6. 6.

    See generally on Article 8 TEU: Wessel and Larik 2020, p. 441.

  7. 7.

    Court of Justice, Costa v. Enel, Judgment of the Court, 15 July 1964, Case 6/64, ECLI:EU:C:1964:66; see further: Czuczai 2012, pp. 452–472.

  8. 8.

    International Law Commission 2006, defining a self-contained regime as a group of rules and principles concerned with a particular subject matter may form a special regime (“Self-contained regime”) and be applicable as lex specialis. Such special regimes often have their own institutions to administer the relevant rules.

  9. 9.

    Court of Justice, Slowakische Republik (Slovak Republic) v Achmea, Judgment, 6 March 2018, Case C-284/16, ECLI:EU:C:2018:158; Court of Justice, Wightman and Others v Secretary of State for Exiting the European Union, Judgment of the (full) Court, 10 December 2018, Case C-621/18, ECLI:EU:C:2018:999, para 45.

  10. 10.

    See on this point European Court of Justice, Draft Agreement relating to the creation of the European Economic Area, Opinion of 14 December 1991, Opinion 1/91, ECLI:EU:C:1991:490, paras 20–21.

  11. 11.

    We witness recently many examples of this option, namely the REACH Chemicals Regulation, OJ 2006 L 396/1-849; the Timber Regulation, OJ 2010 L 295 p. 23–34; Saving Seals Regulation, OJ 2009 L 286/36–39 or the Data Protection Regulation, OJ 2016 L 119/1–88.

  12. 12.

    In the 2007 Commission Staff Working Paper, the Commission referred to the success stories on the multilateral level involving food safety, public health, climate change, maritime safety and financial services.

  13. 13.

    Bradford 2012, p. 1; Scott 2014, p. 1343; Damro 2012, p. 682; De Hert and Czerniawski 2016, pp. 230–243; Scott 2015, pp. 92–120; Cremona and Scott 2019.

  14. 14.

    Like-minded countries with similar standards and expectations such as Canada and Chile are an exception to this rule.

  15. 15.

    Although Ukraine has currently no perspective of joining the Union.

  16. 16.

    Over the years, Switzerland, Iceland and Norway applied for accession. But due to referenda either the application was withdrawn (in case of Switzerland and Iceland) or an accession treaty was not ratified (in the case of Norway). See Tatham 2009, pp. 175–192; and on Iceland: Avery 2012.

  17. 17.

    See also Van Elsuwege 2019, pp. 637–650.

  18. 18.

    For instance, Andorra: Council Decision of 10 May 2005 on the conclusion of a Cooperation Agreement between the European Community and the Principality of Andorra; OJ L 2005 L 135/12.

  19. 19.

    Decision No 1/95 of the EC-Turkey Association Council of 22 December 1995 on Implementing the Final Phase of the Customs Union, OJ 1996 L 35/1–46.

  20. 20.

    Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, opened for signature 29 April 2008, OJ L 278/14 (entered into force 1 September 2013).

  21. 21.

    Agreement on the European Economic Area, opened for signature 2 May 1992, OJ L 1/3–522 (entered into force 1 January 1994) (EEA Agreement).

  22. 22.

    Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, opened for signature 21 March 2014, OJ L 161/3–2137 (entered into force 1 September 2017) (EU-Ukraine Association Agreement).

  23. 23.

    Switzerland is associated to Schengen: Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s Association with the Implementation, Application and Development of the Schengen Acquis, opened for signature 25 October 2004, OJ L53 (entered into force 28 February 2008). Monaco participates in Schengen, and San Marino which is not part of Schengen but no border control between Italy and San Marino are implemented: see Communication from the Commission to the EP, the Council, ECOSOC and the Committee of the Regions, EU relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino, COM (2012) 680 final/2, Brussels 11.1.2013, pp. 9–10. See for CFSP participation, for instance: Agreement between the European Union and the Republic of Albania on the participation of the Republic of Albania in the European Union Military Operation in the Republic of Chad and in the Central African Republic, opened for signature 13 July 2008, OJ L217/19 (entered into force 13 August 2008).

  24. 24.

    See for instance: Commission Decision approving, on behalf of the European Union, an Agreement on the Participation of Albania in “Erasmus+”: the Union Programme for Education, Training, Youth and Sport, C(2014)1937/F1.

  25. 25.

    This concerns the micro-states: Council Decision of 26 November 2009 on the position to be taken by the European Community regarding the renegotiations of the Monetary Agreement with the Republic of San Marino, OJ 2009 L 322/12. Monetary Agreement between the European Union and the Republic of San Marino, OJ 2012 C 2012/5.

  26. 26.

    Decision no 1/2018 EU/Serbia SAA Council of 8 May 2018 on the Participation of Serbia as an Observer in the European Union Agency for Fundamental Rights’ Work and the Respective Modalities thereof, within the framework of Council Regulation (EC) No 168/2007 [2018/1228], OJ 2018 L 229/9.

  27. 27.

    On the EU’s political institutions unwillingness to use the twin pillar system: Iceland Monitor 2018; See also Frederiksen 2010, pp. 481–499.

  28. 28.

    See on this term: Maresceau 2012, pp. 315–340; see also Maresceau 2013a, p. 153.

  29. 29.

    Court of Justice, Demirkan v Bundesrepublik Deutschland, Judgment of the Court (Grand Chamber), 24 September 2013, Case C-221/11, ECLI:EU:C:2013:583, para 44; Court of Justice, Grimme v Deutsche Angestellten-Krankenkasse, Judgment of the Court (Fourth Chamber), 12 November 2009, Case C-351/08, ECLI:EU:C:2009:697; Court of Justice, Hengartner and Gasserv Landesregierung Vorarlberg, Judgment of the Court (Third Chamber), 15 July 2010, Case C-70/09, ECLI:EU:C:2010:430; Court of Justice, Fokus Invest AG v FIAG, Judgment of the Court (Third Chamber), 11 February 2010, Case C-541/08, ECLI:EU:C:2010:74.

  30. 30.

    Court of Justice, Draft Agreement establishing a European Laying-up Fund for Inland Waterway Vessels, Opinion of 26 April 1977, Opinion 1/76, ECLI:EU:C:1977:63; Opinion 1/91 (EEA), above n. 10; Court of Justice, Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area, Opinion of 10 April 1992, Opinion 1/92, ECLI:EU:C:1992:189; Court of Justice, Draft Agreement between the European Community and non-Member States on the establishment of a European Common Aviation Area, Opinion of 18 April 2002, Opinion 1/00, ECLI:EU:C:2002:231; Court of Justice, Commission of the European Communities v Ireland, Judgment, 30 May 2006, Case C-459/03, ECLI:EU:C:2006:345 (Mox Plant); Court of Justice, Kadi and Al Barakaat International Foundation v Council and Commission, Judgment of 3 September 2008, Joined Cases C-402/05 and C-415/05, ECLI:EU:C:2008:461; Court of Justice, Draft Agreement on the Creation of a Unified Patent Litigation System, Opinion of 8 March 2011, Opinion 1/09, ECLI:EU:C:2011:123; Court of Justice, Draft Agreement on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion of 18 December 2014, Opinion 2/13, ECLI:EU:C:2014:2454.

  31. 31.

    Former Prime Minister Theresa May's Florence speech: “Instead let us be creative as well as practical in designing an ambitious economic partnership which respects the freedoms and principles of the EU, and the wishes of the British people”, UK Government 2017.

  32. 32.

    Communication from the Commission to the EP, the Council, ECOSOC and the Committee of the Regions, EU relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino, COM (2012) 680 final/2, Brussels, 11 January 2013.

  33. 33.

    See above n. 28.

  34. 34.

    Ibid.

  35. 35.

    European Union External Action (2010) Council conclusions on EU relations with EFTA countries 3060th GENERAL AFFAIRS Council meeting, Brussels, 14 December 2010: “Since Switzerland is not a member of the European Economic Area, it has chosen to take a sector-based approach to its agreements in view of a possible long-term rapprochement with the EU. In full respect of the Swiss sovereignty and choices, the Council has come to the conclusion that while the present system of bilateral agreements has worked well in the past, the challenge of the coming years will be to go beyond this complex system, which is creating legal uncertainty and has become unwieldy to manage and has clearly reached its limits. In order to create a sound basis for future relations, mutually acceptable solutions to a number of horizontal issues, set out below, will need to be found.”

  36. 36.

    The fate of this draft is also linked to a pending Swiss referendum whether the free movement of persons between the EU and Switzerland should be abolished, see Draft Institutional Agreement with Switzerland, above n. 2.

  37. 37.

    So are currently monetary, taxation, customs and cooperation agreements in place and they also align to Schengen and the CFSP. See Murray 2006, p. 185.

  38. 38.

    Some sectors provide for tariff-free access. According to the famous definition in the Demirel case an association agreement creates “special, privileged links with a non-member country which must, at least to a certain extent, take part in the Community system”, see Court of Justice Demirel v Stadt Schwäbisch Gmünd, Judgment of 30 September 1987, Case 12/86, ECLI:EU:C:1987:400 para 9. See, for comments, amongst others, Van Elsuwege and Chamon 2019.

  39. 39.

    See on this Van der Loo 2016, p. 63 where he discusses the aspects of different types of legislative approximation mechanisms.

  40. 40.

    Van der Loo characterizes this as market access conditionality, above n. 28, p. 66.

  41. 41.

    EEA Agreement, above n. 21, Article 102 “In order to guarantee the legal security and the homogeneity of the EEA, the EEA Joint Committee shall take a decision concerning an amendment of an Annex to this Agreement as closely as possible to the adoption by the Community of the corresponding new Community legislation with a view to permitting a simultaneous application of the latter as well as of the amendments of the Annexes to the Agreement. To this end, the Community shall, whenever adopting a legislative act on an issue which is governed by this Agreement, as soon as possible inform the other Contracting Parties in the EEA Joint Committee”.

  42. 42.

    Lazowski 2006, p. 95.

  43. 43.

    The following third countries are members: Albania, Bosnia and Herzegovina, Kosovo, the Former Yugoslav Republic of Macedonia, Georgia, Moldova, Montenegro, Serbia and Ukraine. Armenia, Norway and Turkey take part as Observers. Energy Community Treaty, opened for signature 25 October 2005, OJ L 198/16-37 (entered into force 1 July 2006).

  44. 44.

    Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Kosovo, Montenegro, the Republic of Serbia; See Transport Community Treaty, opened for signature 09/10/2017, OJ L 278/3-53 (entered into force provisionally).

  45. 45.

    Albania, Bosnia and Herzegovina, Croatia, the Former Yugoslav Republic of Macedonia, Montenegro, Serbia, Kosovo under UNSCR 1244, Norway and Iceland; see Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the Former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia and the United Nations Interim Administration Mission in Kosovo on the establishment of a European Common Aviation Area, opened for signature 9 June 2006, OJ 2006 L 285/3-46 (entered into force 1 December 2017) (ECAA Agreement).

  46. 46.

    For an overview of the Air Services agreements concluded by the EU, see: EP Study 2013, p. 48.

  47. 47.

    See further: Blockmans and Van Vooren 2012, p. 577.

  48. 48.

    Agreement between the European Community and the Swiss Confederation on Air Transport, opened for signature 21 June 1999, OJ L114/73-90 (entered into force 1 June 2002), (EC-Swiss Bilateral Agreement).

  49. 49.

    EU-Ukraine Association Agreement, above n. 22.

  50. 50.

    EEA Agreement, above n. 21.

  51. 51.

    Transport Community Treaty, above n. 44.

  52. 52.

    Knöpfel and Najy 2018.

  53. 53.

    EEA Agreement, above n. 21, Article 6.

  54. 54.

    Transport Community Treaty, above n. 44, Article 19.

  55. 55.

    Ibid., Article 18(1).

  56. 56.

    For instance: Article 30.6 CETA, the Comprehensive Economic and Trade Agreement (CETA) between Canada, of the one part, and the European Union and its Member States, of the other part, opened for signature 30 October 2016, OJ L 11/23 (entered into force (provisionally) 21 September 2017); see also Ghazaryan 2018, pp. 27–74; see also Court of Justice, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), Opinion of AG Bot of 29 January 2019, Opinion 1/17, ECLI:EU:C:2019:72.

  57. 57.

    EC-Swiss Bilateral Air Transport Agreement, above n. 48, Article 17 “The Contracting Parties shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Agreement and shall refrain from any measures which would jeopardise attainment of the objectives of this Agreement”.

  58. 58.

    EEA Agreement, above n. 21, Article 6 “Relevant rulings of the Court of Justice given prior to the date of signature of this Agreement”; Further, Article 16 of the EC-Swiss Bilateral Agreement, above n. 48, provides that: “insofar as the application of this agreement involves concepts of Community law, account shall be taken of the relevant case-law (…) prior to the date of signature”; ECAA Agreement, above n. 45, Article 16 provides that “insofar as the provisions of this agreements and the provisions of the acts specified in Annex I are identical in substance to corresponding rules of the EC Treaty and to acts adopted pursuant to the EC Treaty (…) be interpreted in conformity with the relevant rulings and decisions”.

  59. 59.

    These disputes can concern the interpretation of homogenous norms or the general application and interpretation of the agreement.

  60. 60.

    So is the dispute between the EU and Switzerland on the flanking measures stuck in the Joint Committee of the Swiss bilateral on persons. Regarding the restrictions to the movement of service providers (the so-called “flanking measures”), the EU requested the revision of the discriminatory and disproportionate aspects of some of those measures, such in the case of the so-called “eight-day-rule” and the compulsory deposit. See Europa Consilium 2012.

  61. 61.

    See, generally, Vajda 2018, pp. 205–224.

  62. 62.

    The EEA Agreement and the ECAA Agreement state that the Parties can refer the dispute to the ECJ; see ECAA Agreement, above n. 45, Article 20(4). The internal market-related Swiss bilateral agreements also include a guillotine clause, according to which the termination of one of these agreements leads automatically to the termination of the others; See Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, opened for signature 21 June 1999, OJ L 114 (entered into force 30 April 2002), Article 25.

  63. 63.

    These structures, however, are also visible in exceptional situations such as the case of Member State integration by international law. This is the case of Denmark, which has a permanent opt-out from the area of freedom, security and justice and concluded, for instance, an international agreement with the EU on participation in Europol.

  64. 64.

    The tool of conditionality has been mainly known and employed in the pre-accession context but also has a post-accession dimension and is employed throughout the EU’s external relations.

  65. 65.

    Court of Justice, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), Opinion of the Court of 30 April 2019, Opinion 1/17, ECLI:EU:C:2019:341, paras 111–117; Opinion 2/13 (Accession to the ECHR), above n. 30, para 166; Opinion 1/09 (Patent Court), above n. 30, paras 76–85. See the extensive discussion in the literature on autonomy: De Witte 2013, p. 33; De Witte 2010, pp. 141–155; Govaere 2010, p. 187; Thym 2011, p. 320–322; Odermatt 2018, pp. 291–316; Contartese 2017, pp. 1627–1671.

  66. 66.

    Such arbitration is agreed, for instance, in 1994 Energy Charter Treaty and in the UN Convention on the Law of the Sea, opened for signature 10 December 1992, UNTS 397 (entered into force 16 November 1994), (UNCLOS).

  67. 67.

    Opinion 1/17 (CETA), above n. 65, paras 120–161.

  68. 68.

    Ibid., paras 106–134; Rosas 2003, p. 284.

  69. 69.

    The Rhine Navigation case could also be categorized under the third category because it dealt with a mini-court of EC and Swiss judges in a legal space mainly within the EC legal space, see further on this: De Witte 2013, p. 35.

  70. 70.

    Rosas 2003.

  71. 71.

    Opinion 1/91 EEA, above n. 10; Opinion 1/92 EEA, above n. 30; Opinion 1/00 (ECAA), above n. 30.

  72. 72.

    Opinion 1/09 (Patent Court), above n. 30, paras 74–75.

  73. 73.

    Frederiksen and Franklin 2015, pp. 629–684.

  74. 74.

    See for instance Wessel 2016.

  75. 75.

    See the German Constitutional Court and the provisional application of the CETA agreement or the difficulty in the past of the ratification of the Europe Agreement by Italy due to the Italian-Slovenian border conflict on the Osimo Agreements: Vehar and Ilesic 2002.

  76. 76.

    Opinion 1/76 (European Laying-up Fund), above n. 30, para 14.

  77. 77.

    Ibid., paras 8, 12.

  78. 78.

    Opinion 1/00 (ECAA) above n. 30, para 16 with reference to the opposite situation in Opinion 1/91, above n. 10, paras 31–36.

  79. 79.

    Ibid., Opinion 1/00 (ECAA), paras 16 and 17: “will continue to be dealt exclusively by the machinery provided for by the Treaty”.

  80. 80.

    Eckes 2013, p. 97; see also Govaere 2010, p. 193.

  81. 81.

    See in this respect the European Council Negotiating Guidelines and the Draft Political Declaration setting out the Framework for the Future Relationship between the European Union and the United Kingdom, para 4, Brussels, 22 November 2018, XT 21095/18.

  82. 82.

    European Council Negotiating Guidelines, Brussels 29 April 2017, Speech by Michel Barnier at the Centre for European Reform on 'The Future of the EU’, European Parliament resolution of 13 December 2017 on the state of play of negotiations with the United Kingdom (2017/2964(RSP)).

  83. 83.

    European Parliament resolution of 13 December 2017 on the State of Play of Negotiations with the United Kingdom (2017/2964(RSP)); European Parliament resolution of 14 March 2018 on the Framework of the Future EU-UK relationship (2018/2573(RSP)).

  84. 84.

    Opinion 1/00 (ECAA), above n. 30, para 12.

  85. 85.

    See case involving Switzerland where Switzerland could not be claim to be treated—comparable to a Member State—in regard to the bilateral agreement on transport as a privileged applicant in the Article 263 Procedure; see General Court, Confédération Suisse v European Commission, Judgment of the General Court (Grand Chamber), 9 September 2010, T-319/05, ECLI:EU:T:2010:367.

  86. 86.

    European Council Guidelines, 15 December 2017, EUCO XT 20011/17, para 7; European Council Conclusions, EUCO XT 20022/18, “The European Council underlines that the backstop is intended as an insurance policy to prevent a hard border on the island of Ireland and ensure the integrity of the Single Market”.

  87. 87.

    Van Miert 1998.

  88. 88.

    “In view of the need for a level playing field for all economic operators of the parties concerned and the continued development of internal market relevant acquis, the EU and the EFTA States should ensure homogeneity in the implementation of the acquis and the good functioning of the institutions” in Council Conclusions on EU relations with EFTA countries, Council meeting, Brussels, 14 December 2010, para.7.

  89. 89.

    See Ott 2017.

  90. 90.

    It has been even promoted in the literature into a principle, see Odermatt 2018; see also Hindelang 2019, pp. 383–400.

  91. 91.

    De Witte calls it ‘fuzzy’, in De Witte 2018, p. 8220; Contartese employs the term ‘nebulous’ in Contartese 2017, p. 1628.

  92. 92.

    Court of Justice, Associacao Sindical dos Juizes Portugueses, Judgment of the Court (Grand Chamber) of 27 February 2018, Case C-64/16, ECLI:EU:C:2018:11, para 34.

  93. 93.

    ECAA Agreement, above n. 45, Article 20.

  94. 94.

    Frederiksen 2010, p. 490.

  95. 95.

    EEA Agreement, above n. 21, Article 111.

  96. 96.

    See further Taylor 2018; Baudenbacher 2016; The Times 2017.

  97. 97.

    EU-Ukraine Association Agreement, above n. 22, Article 322, in relation to Dispute settlement relating to regulatory approximation: “1. The procedures set out in this Article shall apply to disputes concerning the interpretation and application of a provision of this Agreement relating to regulatory approximation contained in Chapter 3 (Technical Barriers to Trade), Chapter 4 (Sanitary and Phytosanitary Measures), Chapter 5 (Customs and Trade Facilitation), Chapter 6 (Establishment, Trade in Services and Electronic Commerce), Chapter 8 (Public Procurement) or Chapter 10 (Competition), or which otherwise imposes upon a Party an obligation defined by reference to a provision of EU law. 2. Where a dispute raises a question of interpretation of a provision of EU law referred to in para 1, the arbitration panel shall not decide the question, but request the Court of Justice of the European Union to give a ruling on the question. In such cases, the deadlines applying to the rulings of the arbitration panel shall be suspended until the Court of Justice of the European Union has given its ruling. The ruling of the Court of Justice of the European Union shall be binding on the arbitration panel”.

  98. 98.

    The Association Agreement with Turkey foresees in its Article 24(2) that “The Council of Association may settle the dispute by decision; it may also decide to submit the dispute to the Court of Justice of the European Communities or to any existing court or tribunal.” This reference mechanism has never been used in practice. See Agreement Creating an Association between the European Economic Community and Turkey, opened for signature 12 September 1963, OJ L 35 (entered into force 1 December 1964) (EU-Turkey Association Agreement).

  99. 99.

    Agreement establishing an Association between the EEC and Malta, opened for signature 5 December 1970, OJ 1971 L 61/3-75 (entered into force 1 April 1971).

  100. 100.

    Such as the cooperation agreement with San Marino; see Agreement on Cooperation and Customs Union, opened for signature 16 April 1991, OJ L 84/43-52 (entered into force 1 April 2002); see also EC-Swiss Bilateral Air Transport Agreement, above n. 48, Article 20: “All questions concerning the validity of decisions of the institutions of the Community taken on the basis of their competences under this Agreement, shall be of the exclusive competence of the Court of Justice of the European Communities”.

  101. 101.

    In these agreements only the joint committee is responsible resolving disputes; see EC-Swiss Bilateral Agreement on the Free Movement of Persons, above n. 48, Article 19; see also Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s Association with the Implementation, Application and Development of the Schengen Acquis, OJ L114/6-72 (entered into force 28 January 2008), Article 10.

  102. 102.

    “Due to disagreement between both delegations, the Joint Committee could not pronounce itself on this issue”, see on this Europa Consilium 2012.

  103. 103.

    See Monetary Agreement between the European Union and the Principality of Monaco, opened for signature 24 December 2001, OJ C310 (entered into force 13 October 2012), Article 12: “If no amicable conclusion can be reached, the European Union—acting on a recommendation from the Commission, after consultation with the French Republic and the ECB on matters falling within its field of competence—or the Principality of Monaco may bring the matter before the Court of Justice, if the Joint Committee determines that one of the parties has not fulfilled an obligation or provision under the present Agreement. The judgment of the Court shall be binding on the Parties, which shall take the necessary measures to comply with the judgment within a period to be decided by the Court in its judgment, monetary agreement with Monaco”; See also Draft Institutional Framework Agreement with Switzerland, above n. 2, Article 10(2); Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, opened for signature 24 January 2020, OJ C 384I, entered into force 1 February 2020, Article 170.

  104. 104.

    See for these dispute mechanism, ECAA Agreement, above n. 45, Articles 15, 16; EU-Ukraine Association Agreement, above n. 21, Article 322; Transport Community Treaty, above n. 44, Article 19(2) as preliminary ruling system from the regional court and Article 37 by the dispute parties, as well as annex IV; Monetary Agreement with Monaco, above n. 103, Article 12; Draft Institutional Framework Agreement with Switzerland, above n. 2, Article 10(2); UK Withdrawal Agreement, above n. 103, Article 174(1).

  105. 105.

    Ibid., UK Withdrawal Agreement, Article 174; Draft Institutional Framework Agreement with Switzerland, above n. 2, Article 10(3).

  106. 106.

    On this term see Lazowski 2008, p. 1433.

  107. 107.

    Haukeland Frederiksen and Franklin 2015, pp. 629–684. See on the details Maresceau 2013b, pp. 769–773; Tobler 2018, pp. 1429–1451.

  108. 108.

    Energy Community Secretariat 2018; Deitz et al. 2019; European Parliament 2018; see on this for the ECAA, and the sectoral and regional communities on Energy and Transport: Lazowski and Blockmans 2014, p. 108.

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Acknowledgements

This work is part of the research programme Westerdijk Talentimpuls with project number 014.041.097, which is partly financed by the Dutch Research Council (NWO). The author would like to thank Sonja Boelaert, John Cotter, Bruno De Witte, Pauline Melin, Christa Tobler and Peter Van Elsuwege for their valuable comments and suggestions. The usual disclaimer applies.

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Ott, A. (2021). The Building Blocks and Stumbling Stones of Constructing the European Legal Space. In: Douma, W.T., Eckes, C., Van Elsuwege, P., Kassoti, E., Ott, A., Wessel, R.A. (eds) The Evolving Nature of EU External Relations Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-423-5_9

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