EU external competence
Produced in partnership with Adam Cygan of University of Leicester
EU external competence

The following Public Law practice note Produced in partnership with Adam Cygan of University of Leicester provides comprehensive and up to date legal information covering:

  • EU external competence
  • Exclusive competence and shared competence
  • The status of international agreements
  • Legal personality of the union
  • The need for a legal base and the parameters of external competence
  • TFEU, arts 216–219
  • Direct effect of international agreements
  • Prevalence of GATT over EU law meaning extension of direct effect to WTO agreements
  • EU competence and the common commercial policy
  • Common foreign and security policy

The EU’s external responsibilities are defined in accordance with whether they are conferred on the EU or on the member states. These responsibilities are:

  1. exclusive—where exercised entirely by the Union (for example, the common agricultural policy) and

  2. shared—where they may be exercised either by the Union or by member states (for example, transport policy)

The distinction has been defined in Court of Justice case law and is based on the principle of implicit powers, whereby external competence derives from the existence of explicit internal competence. This case law is established by TFEU, art 216 which sets out that the Union is competent to conclude an agreement where:

  1. the Treaties so provide (exclusive competence)

  2. the conclusion of an agreement is necessary in order to achieve one of the objectives referred to in the Treaties

  3. the conclusion of an agreement is provided for in a legally binding act

  4. the conclusion of an agreement is likely to affect common rules or alter their scope

With the entry into force of the Treaty of Lisbon 2009, the EU acquired legal personality. It is therefore a subject of international law and is capable of negotiating and concluding international agreements on its own behalf.

These international agreements have legal effects in the internal law of the EU and the member states. Moreover, Treaties also lay down the procedures by which the EU can

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