Loyalty to the EU and the Duty to Revise Pre-Accession International Agreements

Author:Sten Andreas Ehrlich - Carri Ginter - Triin Tigane
Position:Undergraduate Student, University of Tartu - Docent of EU law, University of Tartu, Partner at Sorainen - LL.B., Master's Student,University of Tartu , Legal Assistant Sorainen Law firm
Sten Andreas Ehrlich Carri Ginter Triin Tigane
Undergraduate Student Docent of EU law LL.B., Master’s Student
University of Tartu University of Tartu, University of Tartu,
Partner at SORAINEN Legal Assistant
Sorainen Law rm
Loyalty to the EU and the
Duty to Revise Pre-Accession
International Agreements
1. Introduction
One must but refrain from considering simple the legal solutions that form the basis of the European Union
(hereinafter ‘EU’) and its interrelations with the Member States and third countries. Application of these
rules constitutes a complicated balancing exercise between contradicting yet equally valid interests. One
source of such complications is the need to take the binding nature of existing international agreements
into account at the time of accession of any state. One seeks to avoid situations wherein the signing of an
act of accession to the EU for a new Member State would lead to a breach of international agreements rati-
ed by that state on an earlier date. In extreme cases, such a risk could lead to a state refusing EU accession
in order to respect its prior international commitments. According to the Court of Justice of the European
Union (hereinafter ‘CJEU’):*1
[T]he purpose of that provision is to lay down, in accordance with the principles of international
law, that the application of the Treaty does not affect the duty of the member state concerned to
respect the rights of non-member countries under a prior agreement and to perform its obligations
Advocate General (hereinafter ‘AG’) Kokott states: ‘In other words, membership of the European Union
does not impose an obligation on Member States to act, vis-à-vis third countries, in breach of international
agreements previously entered into.’*2 Thus, the treaty framework must cater for this need for exibility
even if at some cost to the uniformity of application of the EU acquis. At the same time, a Member State
could not be given carte blanche to continue operating on the basis of different rules forever. This would
constitute disproportionate interference with une certaine idée de l’Europe.
This article is an attempt to analyse the role and implications of Article 351 (formerly Art. 307 EC and
prior to that Art. 234 EC) of the Treaty on the Functioning of the EU (hereinafter ‘TFEU’), also known as
the ‘con ict clause’, which has been tailored to deal with these dichotomies.*3 According to the CJEU, ‘[t]he
1 Case C-812/79, Attorney General v. Burgoa, para. 8. – ECR 1980, p. 2787.
2 Opinion of AG Kokott in C-366/10, Air Transport Association of America and Others, para. 56. – ECR not yet published
3 Treaty on the Functioning of the European Union. – OJ C 326, 26.10.2012.

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