Opinion of Advocate General Tesauro delivered on 16 December 1993

1 Original language: Italian.

2 On this matter, and for an analysis of the relevant recommendations issued, see the OECD publication Mise en œuvre dn droit de lit concurrence. Coopération internationale pour la collecte de renseignements, Paris, 1984.

3 For an analysis of those problems, see Picone: L'applicazione extraterritoriale delle regole sulla concorrenza e il diritto internazionale in II fenomeno delle concentrazioni di imprese nel diritto interno e internazionale, Padova, 1989, p. 80 et seq.

4 The Recommendation of 25 September 1979 had in turn amended and replaced the Recommendations of 5 October 1967 and 3 July 1973.

5 As stated by the Commission in its Explanatory note on the draft agreement between the Government of the United States and the Commission of the European Communities regarding the application of their competition laws, forwarded to the Member States together with the draft agreement. Emphasis added.

6 So far as concerns the Community, those rules include Articles 85, 86, 89 and 90 of the EEC Treaty, Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, Articles 65 and 66 of the ECSC Treaty and their implementing regulations, including High Authority Decision No 24/54, as well as such other laws or regulations jointly agreed in writing by the parties to be competition law for the purposes ofthe Agreement (Article 1(2)(a)(ii)).

7 Explanatory note to the Member States, annexed to the draft agreement.

8 See, most recently, the judgment in Case C-325/91 France v Commission [1993] ECR I-3283, at paragraph 9.

9 Judgment in Case 22/70 Commission v Coimai [1971] ECR 263, at paragraph 42.

10 See pp. 5 and 6 of the defence.

11 See, in particular, the judgment in Case 181/73 Haegeman [11974] ECR 449.

12 Cited above, at paragraphs 3 to 5.

13 This solution has also been adopted in relation to mixed agreements; see, for instance, the judgment in Case 12/86 Demirel [1987] ECR 3719, at paragraph 7.

14 Opinion 1/75 [1975] ECR 1355.

15 Opinion 1/75, cited above, at p. 1361.

16 Judgment in Case 165/87 Commission v Cornial [1988] ECU. 5545.

17 Sec, for both, J. Rideau: Les accords internationaux dans la jurisprudence de la Cour de justice des Communautés européennes: réflexions sur les relations entre les ordres juridiques international, communautaire et nationaux in Revue Générale de Droit International Public, 1990, p. 289 et seq., in particular p. 380 et seq.

18 It is scarcely necessary to add that the issue concerning the effects of annulment arises in the same terms, so far as concerns compliance with the obligations assumed at international level, whether there has been a declaration of nullity of the agreement, so far as concerns the Community of course, or of the act which enabled the agreement to be concluded and which therefore constitutes its legal basis.

19 I am referring to the fact that normally decisions relating to the signature of agreements are indeed recorded in the minutes, but are followed by a decision approving the agreement (the act concluding it) which is published: that, however, evidently applies to agreements concluded by the Council.

20 See paragraph 7. Sec, in addition, the judgment in Case C-198/91 Cook [1993] ECR I-2487, in which the Court held that a mere letter sent for information does not constitute a decision that may be challenged in proceedings for an annulment (paragraph 14).

21 In that regard, it is sufficient to point out that this designation distinguishes agreements concluded by the President without the Senate's approval. That procedure is widely used in the United States and is based on a practice endorsed by the Supreme Court. It is scarcely necessary to add that executive agreements' do not differ in any way, so far as concerns their effects and their status in the international order, from international agreements concluded on the basis of the procedure involving congressional approval under the Federal Constitution.

22 See, on that point, Schachter: The twilight existence of non-binding international agreements in American Journal of International Law, 1977, p. 296 et seq.

23 It is sufficient to recall the agreements on security and cooperation in Europe, set out in the Final Act of the 1975 Helsinki inter-governmental conference.

24 In that regard, reference should be made to the Memorandum of Understanding between the United States and Canada of 9 March 1984 (see American Journal of International Law, 1984, p. 659 et seq.), which expressly provides in Article 12 that it does not constitute an international agreement.

25 See, in that regard, the provisional report of the Institut de Droit International, Virally: La distinction entre textes internationaux de portée juridique et textes internationaux dépourvus de portée juridique, in Annuaire de VIOI, Cambridge Session, Vol. 60-1, 1983, p. 166 et seq. at p. 212 et seq.

26 It has also been argued that the sentence in question could also help to define the scope of the terms negotiation and conclusion in relation to one another in view of the difficulty of establishing where to draw the line between the two. See, for that view, Louis and Bruckner: Relations extérieures in Megret, Le droit de l a Communauté économique européenne. Vol. XII, 1980, p. 20 et seq.

27 In other words, this procedure is completely different from that laid down in Article 228 of the EEC Treaty. In that regard, see Raux: La procédure de conclusion des accords externes de la Communauté européenne de l'énergie atomique in Revue générale de droit international public, 1965, p. 1019 et seq.

28 In its pleadings, the Commission had referred in particular to 25 instances of bilateral cooperation with non-member countries, all of which were subsequent to 1974. However, only the contested Agreement was formally designated as an agreement. On other occasions, the designation has varied: exchange of letters (18), memorandum of understanding (two), administrative understanding (three), agreed minute (one). No fewer than eight of those agreements were concluded with the United States, some directly with the Government, others with specific departments.

29 In that regard, it should be noted that, on the one hand, the establishment of delegations in non-member countries may be deemed to fall within the Commission's power to organize its own departments and, on the other, there is in any event tacit approval by the budgetary authorities (Council and Parliament) which can be inferred from the adoption of the appropriations necessary for them to function.

30 The agreements concluded by the Commission in that sector, in the form of an exchange of letters and relating to the closure of the Panel, are in any event the subject of preliminary discussions within the Council's 113 Committee.

31 In this case, the agreements form part of legislation already in force, in that they supplement or define other agreements or acts of secondary legislation adopted by the competent authorities of the Community.

32 Judgement in Case 68/86 United Kingdom v Council [1988] ECR 855, at paragraph 24.

33 In that regard, it is scarcely necessary to add that under national law agreements of that type are provided for expressly (see, for instance, Article 59(2) of the German Constitution) or at least by implication, in that provision is made for cases in which the prior assent of Parliament is called for (see, for instance, Article 87 of the Italian Constitution), with the result that the agreement is deemed to have been validly concluded by the executive in all other cases. On the other hand, neither Article 228 nor other Treaty provisions contemplate such a possibility even indirectly.

34 This doctrine is linked to the fact that traditionally the power to conclude international treaties was a sovereign prerogative, accordingly vested in the executive, and was taken away or in any event severely restricted by the intervention, in the procedure for concluding agreements, of the representative bodies.

35 Judgement cited above, paragraphs 12 to 15 and 20 to 22.

36 For the same view see, most recently, Opinion 1/92 oí 10 April 1992 on the draft agreement between the Community and the EFTA countries concerning the creation of a European Economic Area [1992] ECR I-2821, paragraph 39.

37 Judgment cited above, at paragraphs 16 to 19.

38 Council Regulation (EEC) of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 14).

39 For that view, see Cannizzaro: Sulla competenza della Commissione CEE a concludere accordi internazionali in Rivista di diritto internazionale, 1993, p. 657 et. seq..

40 Regulation No 17 of the Council, First regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-62, p. 87).

41 Council Regulation (EEC) of 22 December 19886 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4).

42 See, in that regard, the judgment in Case C-67/91 Asociación Española de Banca Privada [1992] ECR I-4785, in particular at paragraphs 37 and 38, in which the Court refers to the importance of that principle and its effect on relations between the Commission ana the Member States.