Ratification of international agreements by EU Member States

Written by Kristina Grosek and Giulio Sabbati, International agreements play a crucial role in defining international relations, and are a source of conventional international law. The Vienna Convention on the Law of Treaties defines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. Ratification of international agreements (IAs) means the concluding party formally consents to be bound by the agreement or treaty. Ratification procedures follow certain principles but differ from one country to another depending on constitutional and legal requirements and the type of agreement. In EU Member States, the national and regional parliaments’ involvement varies, as does the possibility of holding referendums. For ‘mixed’ agreements between the EU with third countries where Member States need also to ratify, they each apply their own domestic procedures.

Procedure for concluding international agreements

The executive branch has near exclusive competence in the process of concluding IAs, although may be subject to a mandate voted in parliament. In general, the government negotiates an agreement, agrees on the text and subsequently the state representative, endowed with full powers, and signs it. A clear distinction should be made between definitive signature of an IA and a signature subject to ratification, acceptance or approval. A definitive signature does not require further ratification in order for the agreement to enter into force. Conversely, a signature subject to ratification, accept­ance or approval does not establish the party’s consent to be bound. Such an agree­ment cannot enter into force unless it passes through a domestic ratification procedure. Depending on the specific state’s constitution, approval of ratification involves either the executive or parliament. Agreements requiring parliamentary approval are in most cases those of greater political or financial importance, or otherwise significant.

The role of EU national parliaments

In accordance with the constitutions and legislation of each Member State, or if stipulated in the agreement itself, certain IAs require approval of national parliaments in order to be ratified and enter into force. In most cases, domestic legislation defines the types of IAs requiring parliamentary approval or, in some cases, exceptions for which approval is not necessary. Parliamentary approval normally involves the procedure for the adoption of an act, or in some cases (e.g. UK), parliament need only not object. In the EU, all unicameral parliaments and the lower chambers of bicameral parliaments are always involved. In the 13 Member States with bicameral parliaments, the upper chamber’s role varies. The Belgian and Irish Senates are not involved in ratifications, while the Slovenian National Council has only limited competence in adoption of legislation. In Germany and Austria, the involvement of the upper chamber depends on the treaty type and its relevance for the regions (represented in those chambers). In the remaining Member States (Czech Republic, Spain, France, Italy, the Netherlands, Poland, Romania and the UK) both chambers are involved.

Involvement of EU regions and their parliaments or assemblies

With the exception of Belgium, regional parliaments do not play a major role in the ratification procedure of IAs, other than through their seats in second chambers. In Belgium, an agreement needs to be approved by all parliaments concerned. That means that, for Belgium, when all levels are concerned, the agreement needs to be approved by eight parliaments. In other Member States with regional parliaments, their approval is not needed for the ratification of IAs and involvement of regions is limited mainly to negotiations (e.g. Portugal and Spain). Belgian regions and communities can conclude their own treaties in fields within their competences. In Germany and Austria, regions (Länder) can conclude IAs on their own, with the federal government’s approval. Similarly, in Spain and Italy, in areas falling within their responsibility, regions can enter into IAs with foreign states. In the UK, regional parliaments have no role in IAs.

Referendums and international agreements

Referendums for ratification of IAs are possible in the majority of Member States. Which countries allow for that possibility in a specific case depends on the type of IA. Some Member States exclude the possibility of a referendum for ratification of an IA but allow/require referendums in case of constitutional change, transfer of sovereign powers or EU membership (Estonia, Italy, Latvia, Poland and Slovenia). The possibility of a referendum for IA ratification is rarely mentioned expressly in national constitutions or applicable legislation (e.g. France and the Netherlands which specifically allow for referendums on ratification of IAs), but on the other hand a referendum for ratification is not excluded under existing legislative provisions. In Denmark and Hungary there is no possibility of a referendum on the obligations arising from existing IAs. The Czech Republic provides for a referendum only in the case of transferring sovereign powers. Belgium and Germany do not allow referendums for ratification of an IA. Belgium provides for referendums only at regional level, while in Germany, a referendum is possible only in connection with a revision of the country’s existing territorial division. Cyprus does not have provisions on referendums in the constitution, but has adopted a law providing for the possibility.

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National ratification of EU international agreements – mixed agreements

The European Union, having legal personality (Article 47 TEU), is a subject of international law and can negotiate and conclude international agreements within the scope of its competences (Article 5 TEU, Articles 2-4 TFEU). At EU level, the procedure for concluding IAs is set out in Article 218 TFEU; other articles may have specific provisions on the conclusion of IAs (e.g. Article 207 TFEU on the common commercial policy). Depending on the competences involved (EU exclusive competences or shared competences), the conclusion of EU IAs may or may not require ratification by Member States according to their national procedures. If an agreement falls under exclusive EU competence, the EU has the authority to negotiate and conclude the agreement, without any process of national ratification in Member States. When an agreement falls under shared or concurrent competences, the agreement is then considered ‘mixed‘ and needs to go through a two-stage ratification process: the EU and the Member States both need to ratify the agreement, with each Member State following its own national procedures. This two-stage ratification of mixed agreements gives more say to Member States, and even certain regions within them, but also makes the ratification process longer.

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