WG III - WD 29 1 THE EUROPEAN CONVENTION Brussels, 24 ...

21. That being said, the Working Group considered it advisable to suggest certain amendments to
some provisions of the Treaties, to which it draws in particular the attention of members of
the Working Group on External Action, in order to enhance the effectiveness of the Union's
external action and simplify existing procedures. Some members of the Working Group
pointed out that these amendments could be reviewed and supplemented in the light of the
guidelines that would be produced by the Convention as regards the allocation of
competences, procedures and powers of the institutions, and with particular reference to the
functioning of external action and the area of freedom, security and justice.
A. The procedure for negotiating and concluding agreements: the case of "mixed
agreements" (traditional and cross-pillar)
22. As regards the procedure for negotiating and concluding international agreements
(treaty-making power), the Working Group's point of departure was that the existing
distribution of competences between the Member States and the Union as well as the
respective powers of the institutions should be maintained. However, it thought that a clear
indication should be given in a single treaty article 8 of who negotiates and concludes such
agreements. Consolidation of the various applicable procedures in a single provision is made
easier by the fact that, whatever the area concerned, it is always the Council which:
– authorises the opening of negotiations and issues the negotiating directives, and
– concludes the agreements once they are negotiated.
23. Consolidation into a single article might not necessarily involve changes to the specific
features of the procedure according to the subject in hand. Hence, if the agreement under
consideration fell solely under Community law, current Article 300 TEC would apply; if the
agreement came solely under Title V or Title VI, Articles 24/38 TEU would apply; if,
however, the agreement fell within the Community domain and at the same time came under
Titles V and/or VI TEU ("cross-pillar mixity"), the negotiating procedure would be
determined by the Council according to the subject-matter covered by the agreement, with
due regard for the existing institutional balance; where the main purpose of the agreement
concerned a specific subject, a single legal basis would apply.
8 In view of their specific nature, it is not proposed that the provisions concerning the
conclusion of agreements in the field of EMU be incorporated into this single provision
(see Article 111 TEC).
WG III - WD 29 7
EN