Legal Definitions - mixed treaty

A mixed treaty is an international agreement where both an international organization (such as the European Union) and its individual member states become parties to the same treaty. This occurs when the subject matter of the treaty falls partly within the exclusive legal authority (or "competence") of the international organization and partly within the legal authority of its member states.

Here are some examples:

• Example 1: A Comprehensive Trade and Investment Agreement

  Imagine the European Union negotiates a comprehensive trade and investment agreement with a non-EU country, like a hypothetical "Trans-Pacific Economic Partnership." The EU has exclusive competence over common commercial policy, meaning it alone can negotiate and conclude agreements related to trade in goods and services. However, certain aspects of investment protection, particularly those involving portfolio investments or investor-state dispute settlement mechanisms, might still fall under the shared or even national competence of individual EU member states.

  How it illustrates the term: Because the agreement covers both areas where the EU has sole authority (trade) and areas where member states retain significant authority (certain types of investment), both the EU as an entity and its individual member states would need to sign and ratify the treaty for it to fully enter into force. This dual participation makes it a mixed treaty.

• Example 2: An International Convention on Environmental Protection

  Consider a new global convention aimed at protecting specific endangered species across continents and regulating cross-border pollution. While the European Union has extensive environmental policy and can act on behalf of its members in many areas, individual member states also have their own national laws, conservation programs, and responsibilities for managing natural resources within their borders. Some aspects of the convention might require uniform EU-wide standards, while others might necessitate specific national implementation plans or financial commitments from individual countries.

  How it illustrates the term: If the convention addresses issues that fall under both the EU's environmental competence (e.g., setting common emission standards) and the member states' competence (e.g., designating national protected areas or enforcing local regulations), it would be structured as a mixed treaty. Both the EU and its member states would sign on, reflecting their respective legal powers and obligations.

• Example 3: An Agreement on Judicial Cooperation in Civil Matters

  Suppose the European Union and its member states negotiate an agreement with a non-EU country to streamline the recognition and enforcement of civil judgments (e.g., family law decisions, commercial contracts) across their borders. The EU has developed significant competence in judicial cooperation in civil matters, creating common rules for its member states. However, the fundamental organization and procedures of national courts, as well as certain specific areas of family law, often remain within the primary competence of individual member states.

  How it illustrates the term: An agreement that touches upon both EU-level rules for cross-border recognition and enforcement, as well as aspects that require specific commitments or changes to national judicial systems, would be a mixed treaty. Both the EU and its member states would need to be parties to ensure comprehensive coverage and legal effect across all relevant areas of competence.