The Treaty Making Power of the European Commission

The power of the European Commission to conclude international agreements has always been one of the most sensitive issues of the Community legal system. Such sensitiveness is due to the fact that the Member States have never been able to overcome their traditional reluctance to openly assert the treaty making power of such institution. And this even if the Member States recognize the indispensable and irreplaceable character of the extensive international activity of the Commission. The Member States traditionally feared that the Commission could become excessively autonomous should it be expressly attributed a carefully drafted treaty making power: in brief, it was deemed that recognizing to the Commission an open and articulated power of concluding agreements would confer to such institution a political power at international level which could escape a continuous control by the Member States. However, step by step, and obviously with the acquiescence of the Member States, the Commission succeeded in carving out an important role at the international level based also on agreements concluded on behalf of the European Community with other international subjects, be they States or International Organizations. The legal basis of the Commission treaty making power are sources of EC primary law, thus contemplated in the EC Treaties and Protocols, as well as sources of EC secondary law, i.e. the general EC legislation where the Council, or the Council and the Parliament, confer to the Commission the power to agree with third subjects the executive measures of the essential elements and general orientations defined by the EC legislator in its framework acts. In the present essay, we provide for a presentation of the various types of agreements concluded by the European Commission, and we classify them depending on whether their legal basis is a Treaty provision or a piece of secondary EC legislation. Of course, for the purpose of our classification, we will rely on the classic notion of agreement under public international law, as it has also been endorsed by the European Court of Justice, pursuant to which, the EC Treaty “uses the expression ‘agreement’ in a general sense to indicate any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation.” We therefore conclude our analysis dwelling upon the kind of impact the Project for the European Constitution could have on the structure of the treaty making power which the European Commission was able to build for itself in its 50 years’ of international activity.