¹ The concept of implied competence traces its provenance to the early jurisprudence of the U.S. Supreme Court, McCullough v. Maryland 4 Wheaton 400–437 (1819) per Marshall, CJ, generally being considered to be the locus classicus: Zuleeg M. ‘International Organisations, Implied Powers’, in Bernhardt R. (ed.) Encyclopaedia of Public International Law (1995), 1312, 1312; Skubiszewski, K. ‘Implied Powers of International Organisations’ in Dinstein, Y. (ed.) International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht, Martinus Nijhoff, 1989) 855, 855Google Scholar.

² Case 22/70 [1971] ECR 263.

³ Dashwood, A. and Heliskoski, J. ‘The classic authorities revisited’ in Dashwood, A. and Hillion, C. (eds.) The General Law of E.C. External Relations (London, Sweet & Maxwell, 2000) 3, 3, para 1.01Google Scholar.

⁴ Virtually all of the commentators in the area have accepted this analysis of AETR, para 17, but see, in particular, Hartley, T. The Foundations of European Community Law 4th edn (Oxford, OUP, 1998) chapter 6, 171Google Scholar; Dashwood and Heliskoski, above n 3, 5–6 and 18; Dashwood A. ‘The attribution of external relations competence’ in Dashwood and Hillion, above n 3, especially 134–36, paras 8.19–20; Cremona, M. ‘External Relations and External Competence: The Emergence of an Integrated Policy’ in Craig, P. and de Búrca, G. (eds.) The Evolution of EU Law (Oxford, OUP, 1999), chapter 4, 140Google Scholar; Snyder, F. on ‘Implied Powers’ in Monar, J.; Neuwhal, N.; O’Keeffe, D. and Robinson, W. (eds.) Butterworths Expert Guide to the European Union (London, Butterworths 1996), 192 Google Scholar; Timmermans, C. ‘Division of external powers between Community and Member States in the field of the harmonisation of national law—a case study’ in Timmermans, C. and Völker, E.L.M. (eds.) Division of Powers Between the European Communities and their Member States in the Field of External Relations (Deventer, Kluwer, 1981), 15, 18Google Scholar; Weiler, J. ‘The External Legal Relations of Non-Unitary Actors: Mixity and the Federal Principle’ in Weiler, J. The Constitution of Europe, ‘Do the New Clothes have an Emperor?’ and other essays on European Integration (Cambridge, CUP, 1999) 130, 171Google Scholar. Only Takis Tridimas and Piet Eeckhout seem to have eschewed it, though they do not provide a clear alternative interpretation for paras 17 and 22, AETR; see Tridimas, T and Eeckhout, P. ‘The External Competence of the Community and the Case-Law of the Court of Justice: Principle versus Pragmatism’ (1994) 14 YEL 143 Google Scholar.

⁵ Dashwood and Heliskoski, above n 3 at 5–6.

⁶ Dashwood, above n 4 at 135.

⁷ ‘[I]t is treated as axiomatic in the day-to-day practice of EC external relations that the adoption of a piece of internal legislation has among its automatic consequences … the acquisition by the Community of competence to undertake international commitments in all the matters covered by the measure, including ones in respect of which such competence had previously been lacking. … Nobody with experience of Council practice in the conclusion of international agreements could be in the slightest doubt that the AETR principle is alive and well, in both its aspects [i.e. exclusivity and existence of external competence].’ Dashwood, above n 4 at 136. Of course, one should remain mindful here of the Court’s admonition in Opinion 1/94 WTO [1994] ECR I–5267, para 52, rejecting the Commission’s argument that the conclusion of the GATS provisions on transport services came within the Community’s pre-emptively exclusive external competence under Article 133 EC: ‘… a mere practice of the Council cannot derogate from the rules laid down in the Treaty and cannot, therefore, create a precedent binding on Community institutions with regard to the correct legal basis (see Case 68/86 United Kingdom v. Council [1988] ECR 855, paragraph 24).’ In para 61 the Court makes the same point in relation to the conclusion of the TRIPS Agreement on the basis of the same Article.

⁸ That the Community institutions must act within the limits of the powers conferred upon them has always been apparent from Art. 7 EC, as to which see, among many other cases, Case C–327/91 France v. Commission [1994] ECR I–3641, paras 30–35. That competencies and powers are not synonymous is clear even from the text of the Treaty. Art. 230(2) EC, for example, distinguishes competence from, inter alia, powers in delineating the jurisdiction of the Court in annulment actions. For an early consideration of the distinction, see Bleckmann A. ‘The Competence of the EEC’ in Timmermans and Völker, above n 4.

⁹ Bleckmann, for instance, wrote of the notion in 1977 (in Bleckmann A. ‘Die Bleihilfekompetenz der Europäischen Gemeinschaften’ DÖV 1977, 615) and has suggested (in ‘The Competence of the EEC’, above n 8 at 3) that it derives from the French conception of the special functions of international organisations as distinct from the plenipotence of States, citing Rousseau, C. Droit international public, t.II (Paris, Sirey, 1974), 469 Google Scholar.

¹⁰ A word which Snyder translates as a ‘special purpose association’ in his note on ‘Competence’ in the Butterworths Expert Guide to the European Union, Monar et al., above n 4, at 51. Skubiszewski (above n 1 at 856) paraphrasing Marshall (above n 1) describes international organisations as organisations of ‘enumerated powers’.

¹¹ Opinion 2/94 Community accession to the Convention for the Protection of Human Rights and Fundamental Freedoms [1996] ECR I–1759, para 23. At para 24, the Court went on to say that ‘[t]hat principle of conferred powers must be respected in both the internal action and the international action of the Community.’

¹² Ibid, para 30.

¹³ Opinion 1/94, above n 7 at paras 74 and 75.

¹⁴ Under Art. 5 EC. Shades of the principle of attribution are also detectable within the Common Provisions of the TEU, specifically within Arts. 3 (2) and 6 (3) TEU.

¹⁵ Opinion 1/75 Export Credits [1975] ECR 1355, 1360; Ruling 1/78 Draft Convention of the International Atomic Energy Agency on the Physical Protection of Nuclear Materials, Facilities and Transports [1978] ECR 2151, (applying the same reasoning to Art. 103 Euratom); Opinion 1/78 Natural Rubber Agreement [1979] ECR 2871, 2907, para 30; Opinion 2/91 Convention No 170 of the ILO concerning safety in the use of chemicals at work [1993] ECR I–1061, 1075, para 3; Opinion 1/94, above n 7 at para 9; Opinion 2/92 Third revised decision of the OECD on national treatment [1995] ECR I–521, 554, para 13.

¹⁶ [1964] ECR 585, 594.

¹⁷ Emphasis added.

¹⁸ Within the Community legal order, agreements concluded by the Community form an integral part of Community law: Case 181/73, Haegeman v. Belgium [1974] ECR 449, para 5; Case 104/81 Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641, para 12. This is so whether the Community has concluded the agreement in whole or in part: Case 12/86, Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719, para 7. For a recent consideration of this line of cases, see Cheyne I. ‘Haegeman, Demirel and their progeny’ in Dashwood and Hillion, above n 3 at 20.

¹⁹ At 284.

²⁰ Council Regulation 543/69, published on 27 March 1969 and taking effect on 1 April 1969, OJ 1969 L 77/49.

²¹ The French text appears to grant an even broader licence, reading ‘toutes autres dispositions utiles’.

²² At 269.

²³ Ibid.

²⁴ At 271.

²⁵ Para 15. Ganshof Van Der Meersch elegantly described the relevance of this conclusion shortly after it was made. It affirms that ‘le traité n’est pas seulement une juxtaposition d’articles, mais représente une construction d’ensemble, un ‘système’, qui doit être pris en considération comme tel pour déterminer l’étendue des compétences communautaires’; see ‘Les relations extérieures de la CEE dans le domaine des politiques communes et l’arrêt de la Cour de justice du 31 mars 1971’ (1972) CDE 127, 135.

²⁶ Not necessarily in implementation of a common policy though, as para 17 might have suggested. In Opinion 2/91 (above n 15), the German, Irish and Spanish Governments had sought to confine ‘the AETR effect’ to such cases but, for at least two reasons, that argument was always bound to fail. First, if one accepts that the principle informing para 17 of AETR is the primacy of Community law over national laws, however framed, then it makes no logical sense to seek to distinguish between different types of Community law and to suggest that one type is superior but another is not. Second, only para 17 of the AETR case spoke of a common policy (and clearly this was only because that case involved a common policy—the common transport policy). Para 22, which drives home the same message, speaks more generally of the promulgation of rules ‘for the attainment of the objectives of the Treaty’. Unsurprisingly, then, the Court rebuffed the argument in Opinion 2/91 at paras 10 and 11.

²⁷ Emphasis added.

²⁸ It is generally accepted as a matter of public international law that it is legitimate to interpret the purposes and objectives of international organisations and to interpret their constituent constitutions/treaties in the manner most conducive to the achievement of those objectives: Lauterpacht, E. The Development of the Law of International Organisations by the Decisions of International Tribunals, 152 (1976, IV) Recueil des Cours 377, 420Google Scholar. Lauterpacht makes it clear in this piece that it is the principle of effectiveness which generates implied competence. Such an interpretation is compatible with the notion of attributed competencies since the implied competence ‘follows from what has already been agreed upon by [the Member States] in the constituent treaty. … One always remains within the province of that treaty: the purpose of implication is to give efficacy to what has been bestowed on the organization’: Skubiszewski, above n 1 at 859–60.

²⁹ Opinion 1/76 Draft Agreement establishing a European laying up fund for inland waterway vessels [1977] ECR 741 at para 5; Opinion 1/94 at paras 76 and 81.

³⁰ ‘Ainsi, un article du traité permettant au Conseil ou à la Commission de prendre les ‘dispositions utiles’, sans préciser la nature de ces dispositions, contient une habilitation implicite de conclure des accords internationaux concernant la matière visée. Tel est le cas … de l’article 75 par. 1 litt. (c) du traité CEE relatif à l’élaboration de la politique commune des transports.’ Waelbroeck M. ‘L’arrêt A.E.T.R. et les compétences externes de la Communauté économique européenne’ (1971) Intégration 79, 84. See also, Barav A. ‘The division of external relations power between the European Economic Community and the Member States in the case-law of the Court of Justice’ in Timmermans and Völker, above n 4 at 34, and Tridimas and Eeckhout, above n 4 at 150.

³¹ The Advocate-General was also of the view that Art. 75(1)(c) EEC could not be used as a legal basis for the conclusion of the Agreement. He felt that the words ‘international transport’ referred in essence to intra-Community transport, since it was to that alone that the common rules were directly applicable. He also expressed the opinion that it was difficult to concede that so vague an expression as ‘any other appropriate provisions’ could encompass so precise a power as that of the Community to negotiate and conclude agreements with third countries. Had the authors of the Treaty intended such an outcome, they would have inserted an express provision to that effect, as they had done elsewhere in the Treaty. The Advocate-General’s approach clearly did not inform the Court’s reasoning on this point, however, as we shall see in a moment. Further, the Court has consistently made it abundantly clear, in its Opinions pursuant to Art. 300 (6) EC no less than in other contexts, that an historical approach to the interpretation of the Treaty will always cede to a teleological one. In para 44 of Opinion 1/78, the Court, in considering whether the common commercial policy could extend beyond the liberalisation of trade to the regulation of world markets, eschewed an historical approach which would have petrified Art. 133 EC:

³² Case 8/55 Fédération Charbonnière de Belgique v. High Authority of the European Coal and Steel Community [1954–56] ECR 292, 299.

³³ [1992] ECR I–2821.

³⁴ Ibid., para 39, 755.

³⁵ Opinion 1/76.

³⁶ Para 3.

³⁷ In particular, it was contended that the Agreement would jeopardise the principle of territoriality enshrined within the Regulation (since the Agreement favoured an approach based on nationality) and that conclusion of the Agreement would involve the abandonment of the uniformity of arrangements already made within the Community

³⁸ Compare Costa v. ENEL (above n 16) at 594, with AETR at 275, para 21.

³⁹ AETR, para 18. Weiler suggests that the Court’s conception of the nature of the Community’s external competence under para 17 of AETR lies somewhere between supremacy and pre-emption, see above n 4 at 173.

⁴⁰ The founding States of international organisations are, of course, free to exclude or restrict implied competencies in the constituent acts of the organisations they create: Bindschedler, R. ‘La délimitation des compétences des Nations Unies’ (1963, I) 108 Recueil des Cours 307, 329Google Scholar.

⁴¹ It is equally preposterous to suggest that an implied prophylaxis could be obviated, as the Court made clear to the Commission in the contexts of establishment, services and intellectual property harmonisation in Opinion 1/94, at para 86 and at para 100. In its recent decision on tobacco advertising [Case C–376/98 Germany v. Parliament and Council [2000] ECR I–8419], the Court held at para 79 that Art. 95(1) EC (ex Art. 100a EC) cannot be used as a legal basis in order to obviate an express exclusion of harmonisation found elsewhere in the Treaty, such as Art. 152(4) EC. If Treaty restrictions on competence can operate to truncate an express Treaty conferment of competence then a fortiori such a restriction can operate to truncate an implied Treaty conferment of competence.

⁴² See Costa v. ENEL above n 16 at 594.

⁴³ Dashwood, above n 4 at 135.

⁴⁴ Skubiszewski, above n 1 at 863; Lauterpacht, above n 28 at 863.

⁴⁵ Para 82.

⁴⁶ Para 86. It should be emphasised, however, that the Court’s conclusion in AETR was not based exclusively on the inconvenience to third countries of substituting the Community at a late stage as the sole party to the Geneva negotiations (the view expressed by Dashwood and Heliskoski, above n 3 at 4–5). Rather, it was based on concurrence of competence at the time of the negotiations and the duty of cooperation which arises in such a situation. In Kramer, AG Trabucchi, delivering his opinion on 22 June 1976, sought to clarify the Court’s reasoning here, lest it be taken as authority for the proposition that the Member States might enjoy competence in all cases where Community participation might prove uncomfortable for third country negotiating Parties. In para 3 of his opinion, he said that third country participants’ objections to Community participation in negotiations ‘could in no way affect the rule of law which, in the Community legal order, marks the relationship between the Community and its Member States’ (Case 3, 4 and 6/76 Cornelis Kramer and others [1976] ECR 1279 at 1317). Third country resistance ‘could not avail to deprive the Community of its powers and to transfer them back to the Member States. At most, in the event of these difficulties proving insurmountable, the Community could authorise its Member States to act on its behalf, sticking strictly to the guidelines which it laid down for them’ (ibid. at 1318). The Council later invoked this argument in Opinion 1/94, successfully contending that the ‘resolution of the issue of allocation of competence cannot depend on problems which may possibly arise in administration of the agreements.’ (above n 7 at para 107).

⁴⁷ Para 87.

⁴⁸ Joined Cases 3, 4 and 6/76, above n 46.

⁴⁹ With the exceptions of Luxembourg and Italy. The NEAFC was signed in London on 24 January 1959 and entered into force on 25 June 1963.

⁵⁰ Para 16.

⁵¹ AETR, para 16.

⁵² Emphasis added.

⁵³ Opinion 1/75.

⁵⁴ Paras 16–19/20.

⁵⁵ Para 21/25 of the judgment.

⁵⁶ Council Reg. 2141/70 laying down a common structural policy for the fishing industry and Council Reg. 2142/70 on the common organisation of the market in fishery products; OJ, English Special Edition 1970 (III), 703 and 707 respectively.

⁵⁷ Para 30/33.

⁵⁸ Para 29/33. Emphasis added.

⁵⁹ See also Opinion 1/94 at para 85.

⁶⁰ It is true that the only articles of the NEAFC which were directly at issue in Kramer were Arts. 7(1) (g) and (h) thereof, which empowered the Fisheries Commission to make recommendations relating to the amount of total catch and its proration amongst Contracting States and to the allocation of the overall fishing effort, since these were the provisions of the NEAFC which the Dutch laws under which the fishermen were being prosecuted purported to implement. It is also true that these provisions came into existence pursuant to a decision of the Delegations in May 1970 and did not enter into force until 4 June 1974, i.e. after the adoption of the Community regulations. However, the Delegations’ decision was taken pursuant to Art. 7 (2) of the NEAFC, which came into force on 25 June 1963.

⁶¹ Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.

⁶² Para 39.

⁶³ Paras 40–45.

⁶⁴ Paras 41 and 44/45.

⁶⁵ Para 44/45.

⁶⁶ Including Reg. 811/76, adopted after the questions had been referred to the Court, which authorises Member States ‘to limit the catches of their fishing fleets’—para 47/49.

⁶⁷ Para 56/59.

⁶⁸ Above n 29.

⁶⁹ Opinion 1/75 had also arisen under the old Art. 228(1) EEC but dealt only with the Community’s express external competence under Art. 133 EC.

⁷⁰ The Revised Convention for the Navigation of the Rhine of 17 October 1868.

⁷¹ The six Member States in question were Germany, France, Luxembourg, Belgium, the Netherlands and the United Kingdom.

⁷² Art. 80(1) (ex Art. 84(1)) EC provides that the provisions of Title V (ex Title IV) on transport are to apply to transport by rail, road and inland waterway.

⁷³ Art. 1 of the Statute, annexed to the Draft Agreement of which it formed an integral part.

⁷⁴ Para 2; see also Opinion 1/94 at para 85.

⁷⁵ Para 3.

⁷⁶ Ibid.

⁷⁷ AETR, para 16 and Kramer, para 19/20.

⁷⁸ Above n 15.

⁷⁹ Para 15; the Court detected Euratom exclusive competence in the field of supplies of ores, source materials and special fissile materials coming from outside the Community on the basis of the Euratom Treaty, Chapters VI and IX (para 14). The AETR necessity/teleology test operated to supplement that competence so as to enable the Community to satisfy itself that such materials are not diverted from their intended use and that safeguard obligations under international agreements are observed.

⁸⁰ Para 22; the Court did cite AETR at para 36 of its Ruling, but only as authority for the proposition that there is a ‘necessity for harmony between international action by the Community and the distribution of jurisdiction and powers with the Community’, so far as the implementation of mixed agreements under Art. 102 Euratom is concerned.

⁸¹ Emphasis added.

⁸² Above n 15.

⁸³ Limited authority for this construction is to be found in Case C–431/92 Commission v. Germany [1995] ECR I–2189. There, Germany raised a preliminary plea that the Commission’s Art. 226 EC action was inadmissible on the ground that the form of order sought in the application was too imprecise. The Commission had sought a declaration that Dir. 85/377/EEC (requiring environmental impact assessments for certain developments) ‘and “in particular” Arts. 2, 3 and 8 thereof’ had been infringed. Germany argued that this formulation left open the possibility that the Commission was also alleging the infringement of other, unspecified, articles of the Directive. The Court rejected that argument, stating that ‘[i]n its context, the adverbial phrase “in particular” was used in the sense of “specifically” in order to designate precisely those articles of the directive which had been infringed. It could not therefore have led Germany to believe that the application also concerned infringements of other unspecified provisions of the directive and thus have given rise to uncertainty as to the scope of the proceedings’; ibid. at para 15.

⁸⁴ Cf. Dashwood, above n 4 at 134, para 8.19: ‘… the phrase must be intended to indicate that the Court is not excluding the possibility that implied external competence may arise in other ways.’

⁸⁵ Dashwood and Heliskoski, above n 3 at 13, para 1.14.

⁸⁶ Para 6.

⁸⁷ Lenaerts, K. ‘Les répercussions des compétences externes des Etats membres et la question de ‘préemption’’, in Demaret, P. (ed.), Relations extérieures de la Communauté européenne et marché intérieur: aspects juridiques et fonctionnels (Bruges, Collège d’Europe, 1986) n° 45,38, 42Google Scholar. Vigneron P. and Smith A. ‘Le fondement de la compétence communautaire en matière de commerce international de services’ (1992) CDE 515, 523. Tridimas and Eeckhout, above n 4 at 154.

⁸⁸ Those undertakings had been given pursuant to Art. 307 EC (ex Art. 234 EEC), 2^nd sub-paragraph.

⁸⁹ Ibid.

⁹⁰ Above n 18.

⁹¹ Weiler, above n 4 at 172; Dashwood and Heliskoski, above n 3 at 13–14, para 1.15.

⁹² Opinion 2/91, above n 15.

⁹³ Opinion 1/94, above n 7.

⁹⁴ Opinion 2/92, above n 15.

⁹⁵ Opinion 2/94, above n 11.

⁹⁶ Opinion 2/00 of December 2001, not yet reported.