Interuniversity Master’s Degree in Introduction to Mental Health Research

The concept of Contracting Party under the ECT includes not only states, but also REIOs. From this perspective, the ECT is a treaty with a unique profile. Article 1(3) of the ECT defines a REIO as

“[…] an organization constituted by states to which they transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect to those matters.” ²²⁵

1.5.1 The European Communities, the European Union and the Energy Charter Treaty

When the European Charter was concluded in 1991 there were three European Communities: the European Coal and Steel Community (ECSC), the European Atomic Energy Community (EURATOM) and the European Economic Community (EEC). The ECSC was created by the Treaty establishing the European Coal and Steel Community (ECSC Treaty),²²⁶ which provided that the ECSC shall have legal personality to enter

225 According to the documents of the negotiation of the ECT, the idea of including international organizations in the ECT process was advanced by the EBRD in 1991:

“[…] the definition of investor does not appear to us to be sufficiently broad to capture the full range of actors to be involved in Central and Eastern Europe. We recommend that the definition in the Protocol to be amended to recognise the de facto role of the Bank as an investor in Central and Eastern Europe. […]

We recommend the draft in 1(f) to be amended to include:

1(f) “(iii) international organisations such as the European Bank for Reconstruction and Development.””

(Comments of the EBRD on the Basic Protocol Draft, 14/91 BP3 Annex II, 7–8 October 1991) The definition of REIO was suggested by the European Communities and it initially referred to

“[…] an organisation constituted by Sovereign States to which its member States have transferred competences over a range of matters governed by this Agreement and Protocols, including the authority to take decisions binding on its Member States in respect to those matters.” (EC proposal on the definition of Regional Economic Integration Organization, Room Document 20, Working Group II, 1–6 February 1993) See for example, a similar definition of REIOs in Art. 27 of the Convention on the Transboundary Effects of Industrial Accidents, 19 April 2000:

“This Convention shall be open for signature […] by States […] and by regional economic integration organizations constituted by sovereign States members of the Economic Commission for Europe to which their member States have transferred competence in respect of matters governed by this Convention, including the competence to enter into treaties in respect of these matters.”

226 Treaty establishing the European Coal and Steel Community, 23 July 1952.

into international relations.²²⁷ After the establishment of the ECSC, the Treaty establishing the European Economic Community (EEC Treaty) set up the EEC in view of a common economic market.²²⁸ The EEC Treaty provided that the EEC shall have legal personality,²²⁹ while the competence to negotiate and enter into international agreements on behalf of the EEC belonged to the Commission.²³⁰ At the same time, the six founding states of the ECSC and the EEC entered into the Treaty establishing the European Atomic Energy Community (EURATOM Treaty).²³¹ The EURATOM Treaty provided that the EURATOM shall have legal personality,²³² and may enter into international agreements with other states or international organizations.²³³

Between the conclusion of the European Charter in 1991 and the signature of the ECT in 1994, the Member States of the European Communities created the EU. The Treaty on European Union (TEU) established the EU, a new form of cooperation between the Member States of the European Communities.²³⁴ The TEU provided that

“[t]he [European] Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organize, in a manner demonstrating consistency

227 Art. 6 of the ECSC Treaty provides that

“[i]n international relations, the Community shall enjoy the legal capacity it requires to perform its functions and attain its objectives.”

228 Treaty establishing the European Economic Community, 1 January 1958.

229 Art. 210 of the EEC Treaty.

230 Art. 228 of the EEC Treaty provides, among others, the following:

“Where this Treaty provides for the conclusion of agreements between the Community and one or more states or an international organisation, such agreements shall be negotiated by the Commission. […]

Agreements concluded under these conditions shall be binding on the institutions of the Community and on Member States.”

231 Treaty establishing the European Atomic Energy Community, 1 January 1958.

232 Art. 184 of the EURATOM Treaty.

233 See, Art. 101 of the EURATOM Treaty that reads as follows:

“The Community may, within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with a third State, an international organisation or a national of a third State.”

As provided for by Art. 2 of the EURATOM Treaty, the main function of EURATOM is to promote research and regulations in the atomic energy field. Initially, the purpose of the EURATOM was “to develop nuclear energy, distribute it within the Community and sell the surplus to the outside world”.

See, Fairhurst, John; Law of the European Union, 8thedition, Gosport: Pearson Eduation Limited, 2010, p. 8.

234 Treaty on European Union, 1 November 1993.

and solidarity, relations between the Member States and between their peoples.”²³⁵

With the establishment of the EU, the TEU changed the name of the EEC to the European Community (EC). The TEU also established the concept of citizenship of the EU for persons holding the nationality of the Member States. The TEU amended the provisions of the European Community Treaty (EC Treaty) and provided for the exclusive competence of the EC in certain areas.²³⁶

In 1994, the ECT was signed by the European Communities: the ECSC, the EURATOM and the EC. Given their institutional identity, the three communities acted jointly and were referred to as the European Communities. At the time of the signature of the ECT, the European Communities had the following Member States: Belgium, Denmark, France, Germany, Greece, Italy, Ireland, Luxembourg, the Netherlands, Portugal, Spain, and the United Kingdom.²³⁷ The twelve Member States of the European Communities also signed the ECT in their own name.

This situation has only changed on 23 July 2002, when the ECSC Treaty expired, leaving two out of the three European Communities: EC and EURATOM.²³⁸ Consequently, in 2002, the Contracting Party to the ECT was the EC and EURATOM.

With the entry into force of the Treaty on the Functioning of the EU in December 2009

235 Art. A(3) of the TEU. According to the same provision, the EC is competent to act in areas that are not in its exclusive competence

“[…] only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, […], be better achieved by the Community.”

236 Art. 3b of the TEU.

237 Information available at <http://europa.eu/abc/history/index_en.htm> (last visited, 16 February 2011).

238 The TEU and the Treaties establishing the European Communities were subsequently amended by the Treaty of Amsterdam, 1 May 1999, and the Treaty of Nice, 1 February 2003. A first attempt to implement a Constitution of the European Union was made by the Treaty establishing a Constitution for Europe, signed on 29 October 2004, not in force.

For the purpose of this Thesis, the reference to the Community Law and, subsequently, to the EU Law, is understood to include the Treaties establishing the European Communities and the EU, and the legislation implemented based on these Treaties.

(TFEU), EU replaced and succeeded the EC.²³⁹ Out of the three Communities that signed the ECT in 1994, only the EURATOM is still active. Therefore, as of 1 December 2009, the REIO Contracting Party to the ECT is the EU and EURATOM.²⁴⁰ The EU has currently twenty–seven Member States: Austria, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom.

All twenty–seven Member States are Contracting Parties to the ECT.

1.5.2 The European Union and its Member States as Contracting Parties to the